PROPOSED
PRELIMINARY DRAFT OF THE UTTAR PRADESHVALUE ADDED SALES TAX ACT, 2002
1. Short Title, Extent and Commencement
(i) This Act may be called the Uttar Pradesh
Value Added Sales Tax Act, 2003.
(ii) It extends
to the whole of the State of Uttar Pradesh.
(iii) This
section shall come into force at once and the remaining provisions of this Act
shall come into force on such date as the State Government may, by notification
in the Official Gazette appoint, and different dates may be appointed for
different provisions.
In this Act, unless there is anything repugnant
in the subject or context:-
(I) "Act"
means the Value Added Sales Tax Act, 2003;
(II) "Additional
Commissioner of Commercial Taxes" means a person posted by the State
Government as Additional Commissioner in the Commercial Tax Department of the
State Government and includes an Additional Commissioner Grade I Commercial
Taxes and an Additional Commissioner Grade II Commercial Taxes;
(III) "Appellate
Authority" means the authority to whom an appeal lies under section57;
(IV) "Appointed
Day" ‑ In relation to any provision of this Act, means the date on
which such provision comes into force;
(V) "Assessing
Authority" means any officer not below the rank of Commercial Tax Officer
Grade II, posted by the State Government or by the Commissioner of Commercial
Taxes in a Commercial Tax Circle of the Commercial Tax Department of the State
Government and includes an officer posted at a Check‑post or barrier or
an officer posted in a Special Investigation Branch or a Mobile Squad Unit of
the Commercial Tax Department of the State Government;
(VI) "Assessment
year or year" means period of twelve consecutive months ending on
March,31;
(VII) "Assistant
Commissioner of Commercial Taxes" means any person appointed and, or, as
the case may be, posted by the State Government or any person appointed by the
State Government and posted by the Commissioner of Commercial Taxes in the
Commercial Tax Department of the State Government as Assistant Commissioner of
Commercial Taxes and includes an Assistant Commissioner (Assessment) Commercial
Taxes, an Assistant Commissioner (Special Investigation Branch) Commercial
Taxes, Assistant Commissioner (Check‑posts) Commercial Taxes, an
Assistant Commissioner (Administration) Commercial Taxes, an Assistant
Commissioner (Registrations) Commercial Taxes, an Assistant Commissioner (Tax
Recovery) Commercial Taxes, an Assistant Commissioner cum State Representative
Commercial Taxes, an Assistant Commissioner (Check‑posts) Commercial
Taxes, and an Assistant Commissioner (Mobile Squad) Commercial Taxes;
(VIII) "Business",-
(a) In
relation to business of buying or selling goods, includes-
(i) any trade, commerce or manufacture or
any adventure or concern in the nature of trade, commerce or manufacture,
whether or not such trade, commerce, manufacture, adventure or concern is
carried on with a motive to make profit and whether or not any profit accrues
from such trade, commerce, manufacture, adventure or concern;
(ii) the
execution of any works contract or the transfer of the right to use any goods
for any purpose (whether or not for a specified period) for cash, deferred
payment or other valuable consideration;
(iii) any
transaction of buying, selling or supplying plant, machinery, raw materials,
processing materials, packing materials, empties, consumable stores, waste or
by‑products, or any other goods of a similar nature or any unserviceable
or obsolete or discarded machinery or any parts or accessories thereof or any
waste or scrap or any of them or any other transaction whatsoever, which is
ancillary to or is connected with or is incidental to, or results from such
trade, commerce, manufacture, adventure or concern or works contract or lease;
and
(iv) any
transaction of sale or purchase of capital assets pertaining to such trade,
commerce, manufacture, adventure or concern, but business does not include any
activity in the nature of mere service or profession which does not involve the
purchase or sale of goods.
(IX) "Commercial
Tax Officer" means any person appointed by the State Government and posted
by the Commissioner of Commercial Taxes as Commercial Tax Officer in the
Commercial Tax Department of the State Government and includes a' Commercial
Tax Officer (Assessment), a Commercial Tax Officer (Special Investigation
Branch), a Commercial Tax Officer (Mobile Squad), a Commercial Tax Officer
(Registrations), a Commercial Tax Officer (Check‑posts), a Commercial Tax
Officer (Administration), a Commercial Tax Officer (Tax Recovery) and a
Commercial Tax Officer‑cum‑State Representative;
(X) "Commercial
Tax Officer Grade II' means any person appointed and posted by the Commissioner
of Commercial Taxes in the Commercial Tax Department of the State Government as
Commercial Tax Officer Grade II and includes a Commercial Tax Officer Grade II
(Assessment), a Commercial Tax Officer Grade II (Special Investigation Branch),
a Commercial Tax Officer Grade II (Mobile Squad), a Commercial Tax Officer
Grade II (Registrations), a Commercial Tax Officer Grade II (Check‑posts)
and a Commercial Tax Officer (Tax Recovery);
(XI) "Commissioner"
means the person posted by the State Government as Commissioner of Commercial
Taxes in the Commercial Tax Department of the State Government and includes an
Additional Commissioner, an Additional Commissioner Grade‑1, Additional
Commissioner Grade‑II, and a joint Commissioner of Commercial Taxes;
(XII) "Capital
Goods" means plant, machinery, equipments, apparatus, components, moulds
required by a dealer for use in manufacture or processing of his own goods for
sale by a dealer or for use in packing of such manufactured goods by such
dealer, whether sales of manufactured goods are made directly by the dealer or
otherwise;
(XIII) "Casual
Dealer" means a person who whether as principal, agent or in any other
capacity carries on occasional transactions in the nature of business involving
buying, selling, supplying or distributing goods or conducting any exhibition‑cum‑sale
in the State of Uttar Pradesh, whether for cash or for deferred payment or for
commission or remuneration or other valuable consideration;
(XIV) "Certificate
of Moratorium" means certificate of moratorium for payment of tax granted
under section 35;
(XV) "Dealer"
means any person who carries on in Uttar Pradesh (whether regularly or
otherwise) the business of buying, selling, supplying or distributing goods
directly or indirectly, whether on his own account or on account of others, for
cash or for deferred payment or for commission, remuneration or other valuable
consideration and includes-
(i) a local authority, body corporate,
company, any co‑operative society or other society, club, firm, Hindu
Undivided Family or other association of persons which carries on such
business;
(ii) a
factor, broker, arhati, commission agent, delcredere agent, or any other mercantile agent, by
whatever name called, and whether of the same description as hereinbefore
mentioned or not, who carries on the business of buying, selling, supplying or
distributing goods belonging to any principal, whether disclosed or not;
(iii) an
auctioneer who carries on the business of selling or auctioning goods belonging
to any principal, whether disclosed or not, and whether the offer of the
intending purchaser is accepted by him or the principal or nominee of the
principal;
(iv) a
Government which, whether in the course of business or otherwise, buys, sells,
supplies or distributes goods, directly or otherwise, for cash or for deferred
payment or for commission, remuneration or other valuable consideration;
(v) every
person who acts within the State as an agent of a dealer residing outside the
State, and buys, sells, supplies or distributes goods in the State or acts on
behalf of such dealer as-
(a) a
mercantile agent as defined in the Sale of Goods Act, 1930; or
(b) an
agent for handling of goods or documents of title relating to goods; or
(c) an agent for the collection or the payment of
the sale price of goods or as a guarantor for such collection or such
payment;
(vi) a firm
or a company or other body corporate, the principal office or head quarter
whereof is outside the State, having a branch or office in the State, in
respect of purchases or sales, supplies or distribution of goods through such
branch or office;
(vii) every
person who carries on the business of transfer of property in goods (whether as
goods or in some other form) involved in the execution of a works contract;
(viii) every
person who carries on the business of transfer of the right to use any goods
for any purpose (whether or not for a specified period) for cash or for
deferred payment or other valuable consideration;
(ix) every
person who supplies, by way of or as part of any service or in any other manner
whatsoever of goods, being food or any other article for human consumption or
any drink (whether or not intoxicating) whether such supply or service is for
cash, deferred payment or other valuable consideration;
(x) a
casual dealer, who has whether as principal or agent or in any other capacity,
carries on occasional transactions of a business, in the nature involving
buying, selling, supplying or distribution of goods, in the State, whether for cash
or for deferred payment or for commission, remuneration or other valuable
consideration, who does not reside or has no fixed place of business within the
State:
PROVIDED that a person who sells agricultural or
horticultural produce grown by himself or grown on any land in which he has an
interest, whether as owner, unsufructuary mortgagee,
tenant, or otherwise, or who sells poultry or dairy products from fowls or
animals kept by him shall not, in respect of such goods, be treated as a
dealer;
(XVI) "Declared
Goods" means goods declared under section 14 of the Central Sales Tax Act,
1956, to be of special importance in the inter‑State trade or commerce;
(XVII) "Deputy
Commissioner of Commercial Taxes" means any person appointed and, or, as
the case may be, posted by the State Government as Deputy Commissioner of
Commercial Taxes in the Commercial Tax Department of the State Government and
includes a Deputy Commissioner (Enforcement) Commercial Taxes, a Deputy
Commissioner (Appeals) Commercial Taxes, a Deputy Commissioner (Check‑posts)
Commercial Taxes, a Deputy Commissioner (Administration) Commercial Taxes, a
Deputy Commissioner (Tax Recovery) Commercial Taxes, a Deputy Commissioner
(Assessment) Commercial Taxes, a Deputy Commissioner (Audit) Commercial Taxes,
a Deputy Commissioner (Registrations) Commercial Taxes and a Deputy
Commissioner‑cum‑State Representative of Commercial Taxes;
(XVIII)"Document"
includes title deeds, writing or inscription including electronic data, Computer programme,
computer tapes, computer disc, computer floppy and the like that furnishes
evidence;
(XIX) "Eligibility
Certificate" means eligibility certificate granted under provisions of
section 4‑A of the U.P. Trade Tax Act, 1948, or rules made or
notifications issued thereunder to industrial units
established on or after 1‑10‑1982 or to such other industrial units
which have taken programme of expansion or
diversification or modernisation or backward
integration;
(XX) "Goods"
means every kind or class of movable property and includes live stock, all
materials, commodities and articles involved in the execution of a works
contract, growing crops, grass, trees and things attached to, or forming part
of the land which are agreed to be severed before sale or under the contract of
sale, but does not include money, actionable claims, stocks, shares, securities
or postal stationery sold by the postal department;
(XXI) "Importer"
in relation to any goods means the dealer who makes the first sale of such
goods after their import into the State;
(XXII) "Input
tax" for the purpose of this Act input tax means the aggregate of the
following amounts:-
(i) amount of tax charged in accordance
with provisions of this Act by the registered selling dealer to the purchasing
dealer on the turnover of sales of goods;
(ii) amount
of tax paid or payable directly to State Government by the purchaser himself on
the turnover of purchases liable to tax under this Act.
Explanation (1): Input tax does not include the
following:-
(i) Amount of Special Additional Tax
charged under this Act by the seller to the purchaser on the turnover of sales
of goods or amount of Special Additional Tax payable by the purchaser directly
to the State Government on purchase of goods;
(ii) Amount
of tax charged by the seller of goods to the purchaser in respect of turnover
of sales of goods or the amount of tax payable in respect of turnover of
purchases of goods by the purchaser directly to the State Government, if the
purchaser has opted scheme of payment of lump sum in lieu of actual amount of
tax payable on the turnover of sales of goods under any scheme of composition
of tax liability under section 26 of the Act.
(2) Input
Tax does not include following amounts:-
(i) the amount of tax charged by the seller
to the purchaser in respect of turnover of sales of Aviation Turbine Fuel or
diesel or Natural Gas or Petrol or amount of tax payable by the purchaser in
respect of turnover of purchases of such goods directly to the State
Government;
(ii) the
amount of tax charged by the selling dealer to the purchaser in respect of
turnover of sales of goods or amount of tax payable by the purchaser directly
to the State Government in respect of turnover of purchases of goods, if such
goods are not required by the purchaser for-
(a) resale;
or
(b) use
in processing or manufacturing of taxable goods of his own for business
purposes; or
(c) use in
packing of taxable goods manufactured by him.
(XXIII)Invoice" means a document listing
goods, sold with price, quantity etc, and includes a statement of account, a
bill, cash memo and any other similar record, regardless of its form or
characteristics and a cash register, slip or receipt;
(XXIV)"Joint Commissioner of Commercial
Taxes" means any person posted by the State Government as Joint
Commissioner in the Commercial Tax Department of the State Government and
includes a Joint Commissioner (Appeals) Commercial Taxes, a Joint Commissioner
(Enforcement) Commercial Taxes and a joint Commissioner (Check‑post)
Commercial Taxes;
(XXV)"Manufacture" means producing,
making, mining, collecting, extracting, altering, ornamenting, finishing, or
otherwise processing, treating or adapting any goods; but does not include such
manufacture or manufacturing processes as may be prescribed;
(XXVI)"Manufacturer" in relation to
any goods means the dealer who makes the first sale of such goods in the State
after their manufacture;
(XXVII)"Officer‑in‑charge of a
check post or barrier" includes an officer not below the rank of a
Commercial Tax Officer Grade II, posted by the Commissioner Commercial Taxes,
at a check post or barrier,
(XXVIU) "Person"‑For the
purpose of this Act person includes:-
(i) a dealer, as defined under clause (10) of this section;
(ii) a
sole proprietor;
(iii) a
partnership;
(iv) a
HUF;
(v) an
agent;
(vi) a
company, a corporation, a society including a co‑operative society, a
trust, a club, an institution, an association of persons, a local authority,
whether incorporated or not;
(vii) a
State or the Central Government Department or a Government Enterprise or body
corporate.
(XXIX)Prescribed" means prescribed under
the rules made or notifications issued under this Act;
(XXX) "Place
of business" means any place where a dealer carries on business and
includes-
(i) any shop, ware‑house, godown or other place where a dealer stores his goods;
(ii) any
place where a dealer produces or manufactures goods;
(iii) any
place where a dealer keeps his books of accounts and documents;
(iv) any
place where a dealer executes the works contractor where the right to use goods is exercised; and
(v) in
a case of a dealer who carries on business through an agent (by whatever name
called), the place of business of such agent;
(XXXI)Purchase price" means the amount of
valuable consideration paid or payable by a dealer in respect of purchase of
goods, made by or through him after deducting the amount, if any, refunded to
the dealer by the seller in respect of any goods returned to such seller within
such period as may be prescribed.
Explanation: Purchase price does not include:-
(i) the amount representing the cost of
outward freight or cost of installation, charged by the seller to the purchaser
of goods if such amounts have been shown separately on sale invoice issued by
the seller;
(ii) amount
of tax if such amount is shown separately on the sale invoice.
(XXXH)"Registered dealer" means a
dealer registered under section 17 of this Act and includes a dealer who has
obtained registration voluntarily;
(XXXIII)"Registering Authority" means
any officer not below the rank of Commercial Tax Officer Grade II, posted by
Commissioner Commercial Taxes in Registration Cell of a Commercial Tax Circle
to perform all or any of the functions of Registering Authority under the Act
in respect of dealers of such Circle and Registering Authority includes an
officer posted in a Commercial Tax Circle and having jurisdiction over the
dealer;
(XXXIV)"Re‑Sale" means a sale
of any goods purchased by the dealer in the same form and condition in which
such goods were purchased;
(XXXV)"Return" means any return
prescribed and/or required to be furnished under this Act or the rules made thereunder;
(XXXVI)"Rules" means rules made under
this Act by the State Government to carry out the purposes of the Act;
(XXXVII)"Sale" with its grammatical
variations and cognate expressions, means any transfer of property in goods
(otherwise than by way of a mortgage, hypothecation, charge or pledge) by one
person to the other person for cash or deferred payment or other valuable
consideration and includes-
(i) a transfer, otherwise than in pursuance
of a contract, of property in any goods for cash, deferred payment or other
valuable consideration;
(ii) a
transfer of property in goods (whether as goods or in some other form) involved
in the execution of a works contract;
(iii) delivery of goods on
hire purchase or any other system of payment by installments;
(iv) a
transfer, delivery or supply of goods under a contract of transfer of the right
to use any goods for any purpose (whether or not for a specified period) for
cash, deferred payment or other valuable consideration;
(v) supply
of goods by an association or body of persons (whether incorporated or not) to
a member thereof for cash, deferred payment or other valuable consideration;
(vi) supply,
by way of or as part of any service or in any other manner whatsoever of goods,
being food or any other article for human consumption or any drink (whether or
not intoxicating) where such supply or service is for cash, deferred payment or
other valuable consideration and such delivery, transfer or supply of any goods
under clauses (i) to (vi) above shall be deemed to be
sale of those goods by the person making the delivery, transfer or supply and a
purchase of those goods by the person to whom such delivery, transfer or supply
is made.
(XXXVIII)"Sale price" means the
amount of valuable consideration paid or payable to a dealer for any sale made
including any some charged for anything done by the dealer in respect of goods
at the time of or before delivery thereof, other than cost of outward freight
or delivery or cost of installation in cases where such cost is separately
charged.
Explanation:
(i) In case of sale of goods warehoused in
bonded warehouses, appointed or licensed, under the Central Excise Act 1944 or
the U.P. Excise Act, the sale price shall include the duties paid or payable
under the aforesaid Acts in respect of such goods at the time of clearance of
the goods from the bonded warehouse whether such duties are paid or payable by
or on behalf of the seller or by any person who clears the goods;
(ii) In
a case in which any amount of duties payable by a dealer is deferred for a
period or point of payment of any Duty is shifted, sale price shall include
such amount of Duties;
(iii) Sale
price shall not include any amount allowed by seller of goods to the purchaser
as cash discount or commission or trade discount at the time of sale of goods;
(iv) In
case of delivery of goods on hire purchase or any other system of payment by instalment sale price shall be the total sum payable by the
hirer under a hire purchase agreement in order to complete the purchase of or
the acquisition of property in goods to which the agreement relates and
includes sum as payable by the hirer under the hire purchase agreement by way
of deposit or other initial payment or credited or to be credited to him under
such agreement on account of any such deposit or payment whether that sum is to
be or has been paid to owner or to any person or is to be or has been
discharged by payment of money or by transfer or delivery of goods or by
another means but does not include any sum payable as a penalty or as
compensation or damages for breach of agreement;
(v) The
amount for which goods are sold or purchased shall include the price of packing
material in which they are packed;
(vi) Sale
price of goods in relation to transfer of property in goods (whether as goods
or in some other form) involved in the execution of a works contract is the
valuable consideration received or receivable in respect of a works contract
less actual amount incurred towards labour and
services and amount of profit relating to supply of labour
and services and such other amounts as may be prescribed. Sale price of goods
does not include any sum received or receivable by the contractor as claim or
damages from the contractee but sale price does not
exclude any able by the contractor for any breach of conditions amount paid or
pay, of the contract or agreement or paid or payable as any penalty or damages;
(vii) In
respect of transfer of right to use goods, any goods for any purpose (whether
or not for a specified period) sale price means the valuable consideration
received or receivable in respect of such transfer of right to use goods but
does not include any sum payable as a penalty or as compensation or damages for
breach of agreement;
(viii) In
respect of a sale, if amount of tax under this Act is charged separately by the
dealer in accordance with provisions of this Act, the same shall not be deemed
part of sale price and in all other cases amount of tax shall be deemed part of
sale price.
(XXXIX) "Schedule" means any Schedule
appended to this Act;
(XL) "Section" means section of this Act;
(XLI) "Settlement
Commission" means the Commission constituted under section65 of this Act;
(XLII) "State"
means the State of UTTAR PRADESH;
(XLIII)"Tax"‑For the purpose of
this Act, tax means tax leviable on sale or purchase
of goods other than newspapers and tax includes-
(a) lump
sum (composition money) accepted in lieu of actual amount of tax due on
turnover of sales and, or as the case may be, of purchases as provided under
section 26 of the Act;
(b) amount
of reverse input tax credit; and
(c) amount
of Special Additional Tax payable under provisions of section5.
(XLIV)"Taxable Goods", means goods
other than the goods the sale or purchase of which is not liable to tax under
this Act;
(XLV) "Tax
period", means calendar month or a quarter of an assessment year ending on
thirtieth June or thirtieth September or thirty‑first December or thirty‑first
March; or part thereof as the case may be, as may be prescribed;
(XLVI)"Tribunal" means the Tribunal
constituted under section 59 of this Act;
(XLVH)"Turnover of sales" means the
aggregate of amount of sale prices of goods sold or supplied or distributed by
way of sale by a dealer, either directly or through another, on his own account
or on account of others, whether for cash or deferred payment or other valuable
consideration;
(XLVIII)"Turnover of Purchases" with
its cognate expressions means the aggregate of the amounts of purchase prices
paid or payable in respect of purchases of goods made by a dealer either
directly or through another dealer, whether in his own account or on account of
others, after deducting the amount, if any, refunded to such seller in respect
of any goods returned to such seller within such period as may be prescribed;
(XLIX)"Vehicle"‑For the purpose
of this Act, vehicle includes wheeled conveyance used for carriage of goods
solely or in addition to passengers;
(L) "Vessel"
includes any container, ship, barge, boat, raft, timber, bamboos or floating
materials propelled in any manner.
Explanation: For the purpose of this Act, any person
who carries any goods as personal luggage or as person in charge of the goods
shall be deemed a vehicle carrying goods.
(LI) "Works
contract" means any contract for works that involves transfer of property
in goods (whether as goods or in some other form) involved in the execution of
such works and works contract includes any agreement for carrying out, for
cash, deferred payment or other valuable consideration, the building
construction, manufacture, processing, fabrication, erection, installation,
fitting out, improvement, modification, repair or commissioning of any movable
or immovable property.
(1) Subject
to other provisions of this Act, every dealer who is liable to pay tax in
accordance with provisions tinder sub‑section (2) shall pay tax, in the
manner prescribed, on turnover to be determined in the prescribed manner, of
all sales inside the State and, or, as the case may be, of all purchases inside
the State as mentioned in sub‑section (4), of all taxable goods at such
point of sale or purchase and at such rates as provided by or under this Act.
(2) Every dealer-
(i) who was a registered dealer under the
U.P. Trade Tax Act, 1948 or under the Central Sales Tax Act, 1956 and has not
discontinued business on or before the date of commencement of this Act; or
(ii) who
was carrying on business of sale and, or purchase of goods inside the State
only and neither he received any goods brought from outside the State either
brought by himself or consigned or brought by any principal nor dispatched any
goods outside the State, if the aggregate of his turnover of sales and or, as
the case may be, of purchases has exceeded in the immediately preceding year-
(a) minimum
limit of taxable turnover if the dealer has carried on business for such whole
year; or
(b) rupees
(Lxp/ 12) if the dealer has started business after
the first day of such preceding year where L represents minimum limit of
taxable turnover and p represents period in months commencing on the date of
start of business and ending on the last date of such preceding year; or
(iii) who
had made inter State‑sales of any taxable goods of any amount during the
year preceding the year of commencement of this Act; or
(iv) who
had consigned any taxable goods of any amount outside the State except by
reason of a sale during the year preceding the year of commencement of this
Act; or
(v) who
had sold any taxable goods of any amount in the course of export of goods out of
or in the course of import of goods into the territory of India during the year
preceding the year of commencement of this Act; or
(vi) who
had received any taxable goods of any amount brought from outside the State
either brought by himself or consigned or brought by any principal; or
(vii) who
commences business of the nature mentioned in clause (ii) on the date of
commencement of this Act or on first date of any year after the commencement of
this Act and aggregate of his turnover exceeds the minimum limit of taxable
turnover; or
(viii) who
commences business of the nature mentioned in clause (ii) on any day except
first day of any year after the date of commencement of this Act and aggregate
of his turnover of sales and, or, as the case may be, of purchases exceeds
(Lxp/12) in the year of commencement of the business, where L represents
minimum limit of taxable turnover and p represents period in months commencing
on the date of start of business and ending on the last date of such preceding
year; or
(ix) who
commences business of the nature mentioned in clause (ii) on any day except
first day of any year after the date of commencement of this Act but aggregate
of his turnover of sales and, or, as the case may be, of purchases, does not
exceed (Lxp / 12) in the year of commencement of
business where L and p have same meanings as assigned to them under sub‑clause
(b) of clause (ii) and whose aggregate of turnover of sales and, or, as the
case may be, of purchases from the beginning of any year exceeds the minimum
limit of taxable turnover in the same year; or
(x) who,
on or after the date of commencement of this Act, makes purchases of any
taxable goods of any amount with an intention to consign such goods outside the
State except by reason of a sale whether or not in the same form; or
(xi) who
makes inter‑State sale of any taxable goods of any amount on or after the
date of commencement of this Act; or
(xii) who
makes sales of any taxable goods of any amount in the course of export of goods
out of or in the course of import of goods into the territory of India on or
after the date of commencement of this Act; or
(xiii) who
receives any taxable goods brought from outside the State either brought by the
dealer himself or consigned or brought by any principal on or after the date of
commencement of this Act; or
(xiv) who
applies for grant of voluntary registration on or after the date of
commencement of this Act; or shall be liable to pay tax with effect from the
date as shown in sub‑section.
Explanation: aggregate of turnover of sales and, or,
as the case maybe, of purchases of goods referred to in clauses (ii), (vii),
(viii) and (ix) means higher of the following:-
(i) the aggregate of turnovers of-
(a) all
purchases inside the State, of all goods made in his own account by the dealer
including the turnover of purchases inside the State of goods the sale or
purchase of which is exempt from payment of tax under this Act;
(b) all
purchases inside the State of goods including purchases inside the State of
goods the sale or purchase of which is exempt from payment of tax under this
Act; made for principals either for dispatch within the State or for sale by
the dealer himself; and
(c) all
sales inside the State of all goods except goods the purchases of which are
included in sub‑clauses (a) and (b), whether made on his own account or
on account of others including the turnover of intra-State sales of goods the
sale and purchase of which is exempt from payment of tax under this Act but
excluding the turnover of intra‑State sales of goods in respect of which
such dealer is the first seller of such goods inside the State, where such
goods have been brought from outside the State either by the dealer himself or
by some one else; or
(ii) aggregate
of turnovers of-
(a) all
purchases inside the State of all goods made in his own account including the
turnover of all purchases inside the State of goods the sale or purchase of
which is exempt from payment of tax under this Act;
(b) all
purchases inside the State of goods including turnover of purchases inside the
State of goods the sale or purchase of which is exempt from payment of tax
under this Act; made for principals either for dispatch within the State or for
sale by the dealer himself; and
(c) all
sales inside the State of goods made on behalf of principals including turnover
of sales inside the State of goods the sale or purchase of which is exempt from
payment of tax but excluding the turnover of sales inside the State of goods in
respect of which such dealer is the first seller of goods inside the State,
where such goods have been brought from outside the State either by the dealer
himself or by some one else;
(3) Subject
to provisions tinder sub‑section (4), dealers mentioned in column (2) of
the table below shall be liable to pay tax with effect from the date mentioned
against each of them in column (3) of the said table.
TABLE
|
S1. No. |
Class of
dealers |
Date
from which dealer is liable to pay tax |
|
|
(2) |
(3) |
|
1. |
Dealers failing under clauses (i) to (vi)
of sub-section (2) |
Date of commencement of this Act |
|
2. |
Dealers falling under clauses (vii) and (ix) of sub-section (2) |
Date on which the dealer exceeds the minimum limit of taxable
turnover and from the moment he exceeds such limit |
|
3. |
Dealers failing under clause (viii) of sub- section (2) |
Date on which the dealer exceeds the limit of turnover mentioned in
clause (viii) of sub-section (2) and from the moment he exceeds such limit |
|
4. |
Dealers falling under clause (x) of sub- section (2) |
Date on which such first purchase is Made |
|
5. |
Dealers failing under clause (xi) of sub- section (2) |
Date on which the dealer makes first inter-State sale of taxable
goods |
|
6. |
Dealers falling under clause (xii) of sub Section (2) - |
Date on which first sale mentioned in clause (xii) is made |
|
7. |
Dealers falling under clause (xiii) of sub- section (2) |
Date of receipt of goods referred to in, clause (xiii) of sub-section
(2) |
|
8. |
Dealers falling under clause (xiv) of sub- section (2) |
Date on which voluntary registration is granted to the dealer |
Explanation: If the business carried on by a dealer
falls under more than one clause mentioned under sub‑section (2), he
shall be liable to pay tax from the earliest date on which such dealer becomes
liable to pay tax.
(4) Dealers
mentioned in sub‑section (2) shall be liable to pay tax on tile turnover
of sales and, or, as the case may be, on turnover of purchases as under:-
(i) Dealers referred to in clauses (i) to (vi) shall be liable to pay tax on the turnover of-
(a) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural' Gas and
Petrol;
(b) all
sales of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol if the point of
levy of tax on such sales lies at the hands of the dealer; and
(c) all
purchases of taxable goods made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made on or after the
date of commencement of this Act;
(ii) Dealers
referred to in clauses (vii), (viii) and (ix) shall be liable to pay tax on the
turnover of-
(a) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol;
(b) all
sales of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol. if the point of
levy of tax on such sales lies at the hands of the dealer; and
(c) all
purchases of taxable goods made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made on or after the
date and after the moment he aggregates of turnover of sales and, or, as the
case may be, of purchases of all goods exceeds the limit of turnover mentioned
in the relevant clause under sub‑section (2);
(iii) Dealers
referred to in clause (x) of sub‑section (2) shall be liable to pay tax
on the turnover of-
(a) all
purchases referred to in clause (x) made on the date on which dealer makes
first purchase of such goods;
(b) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol;
(c) all
sales of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol if the point of
levy of tax on such sales lies at the hands of the dealer; and
(d) all
purchases of taxable goods made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made after such date;
(iv) Dealers
referred to in clause (xi) of sub‑section (2) shall be liable to pay tax
on the turnover of-
(a) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol;
(b) sales
of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol if the point of levy
of tax on such sales lies at the hands of the dealer; and
(c) all
purchases of taxable goods made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made after the date on
which first inter‑State sale is made;
(v) Dealers
falling under clause (xii) of sub‑section (2) shall be liable to pay tax
on the turnover of-
(a) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol;
(b) sales
of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol if the point of levy
of tax on such sales lies at the hands of the dealer; and
(c) all
purchases of taxable goods, made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made after the date on
which first sale of goods either in the course of export of goods out of or in
the course of import of goods into the territory of India is made;
(vi) Dealers
falling under clause (xiii) of sub‑section (2) shall be liable to pay tax
on the turnover of-
(a) all sales
of taxable goods referred to in the said clause made on the date on which such
goods were received;
(b) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol;
(c) all
sales of Aviation Turbine Fuel ' Diesel, Natural Gas and Petrol if the point of
levy of tax on such sales lies at the hands of the dealer; and
(d) all
purchases of taxable goods, made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made after the date on
which the dealer receives such goods for the first time;
(vii) Dealers
referred to in clause (xiv) of sub‑section (2) shall be liable to pay tax
on the turnover of-
(a) all
sales of taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol;
(b) all
sales of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol if the point of
levy of tax on such sales lies at the hands of the dealer; and
(c) all
purchases of taxable goods made in the circumstances in which person selling
goods is not liable to pay tax on sales of such goods, made on or after the
date on which the dealer receives the registration certificate.
(5) Where
any goods liable to tax at any point of sale or at every point of sale under
this Act are purchased by a dealer from a person in the circumstances mentioned
below:-
(i) Where person selling goods is a person
other than a dealer; or
(ii) Where
goods have been purchased from a registered dealer but the purchasing dealer
does not possess a tax invoice issued by the selling dealer in the prescribed
manner or in the ordinary course of business and the purchasing dealer also
fails to prove that the selling dealer has deposited tax due under the Act on
such sale; or
(iii) Where
goods are purchased from a dealer other than a registered dealer and the
purchasing dealer fails to prove that:-
(a) such
sale is liable to tax in the hands of the selling dealer; and
(b) the
selling dealer has deposited amount of tax due on such sale; or
(iii) Where
purchase of goods has not been recorded by the purchasing dealer in his books
of accounts kept by him in the ordinary course of business; or purchasing
dealer shall be liable to tax on the turnover of purchases of such goods.
(6) Minimum
limit of taxable turnover referred to in clauses (ii), (vii), (viii) and (ix)
shall be as under:-
(i) dealers who carry on business of
transfer of right to use goods (whether or not as exclusive business) the
aggregate of turnover as defined in explanation (1) to sub‑section (2)
Rupees two lakh; and
(ii) in
cases of other dealers (other than those covered under clause (i) above) the aggregate of turnover as defined in
Explanation (1) to sub‑section (2) Rupees three lakh.
(7) Where
any dealer after commencement of this Act succeeds any other dealer whether due
to reconstitution in the ownership or as a result of purchase of business as a
whole or otherwise, the transferee dealer shall be liable to pay tax, from the
time and from the date he succeeds such business if the transferee dealer had
been liable to pay tax immediately before the succession of the new business,
and if the transferee dealer had not been liable to pay tax and if the business
being carried on is of the nature of business mentioned in clause (ii) of sub‑section
(2), the time and date of becoming the transferee dealer liable to tax shall be
determined after taking into consideration the aggregate of turnover of sales
and, or, as the case may be, of the purchases made by the transferer
dealer during the year in which transfer of business has been made.
(8) Where a dealer liable to
pay tax under this Act-
(i) is a dealer who has been carrying on
exclusive business of the nature mentioned in clause (ii) of sub‑section
(2) and aggregate of his turnover of sales and, or, as the case maybe, has not
exceeded rupees three lakh for each of the assessment
year during a period of three consecutive years; or
(ii) is
a dealer who did not carry on exclusive business of the nature mentioned in
clause (ii) of sub‑section (2) and such dealer during a period of three
consecutive assessment years-
(a) has
not purchased any goods after furnishing any form of declaration or certificate
prescribed either under this Act or under the Central Sales Tax Act, 1956; or
(b) has
not received any taxable goods brought from outside the State either brought by
himself or by the principal; or
(c) has
not consigned any taxable goods in terms of section 6‑A of the Central
Sales Tax Act, 1956 for delivery at a place outside the State; or
(d) does
not possess any taxable goods purchased after furnishing any form of
declaration or certificate prescribed either under this Act or under the
Central Sales Tax Act, 1956, or under the Uttar Pradesh Trade Tax Act, 1948
whether or not in the same condition at the end of the said period of three
years;
(e) has
not sold any taxable goods in the course of inter‑State trade or
commerce; or
(f) has
not sold any taxable goods in the course of export of goods out of or in the
course of import of goods into the territory of India, may after expiry of the
said period of three years, in any year within thirty days from the beginning
of such year (first day of the assessment year being inclusive) apply to the
assessing authority for declaring him non‑taxable dealer with effect from
the first date of such year. The application shall be presented in the
prescribed form and verified in the prescribed manner along with registration
certificate, if granted to him under this Act and all forms of declaration or
certificates prescribed either under this Act or under the Central Sales Tax
Act, 1956 remaining unused with such dealer:
PROVIDED that presuming that such dealer has started
business afresh on the first date of the year the dealer has presented the application
for declaring him non‑taxable, if the dealer again becomes liable to tax
on any date in any year such dealer shall be liable to pay tax in accordance
with other provisions under this section.
(9) Where
an application under sub‑section (8) has been presented by a dealer, if
the assessing authority, after making such enquiry as it may deem fit, is
satisfied that the particulars disclosed by the dealer in the application are
correct and the dealer has surrendered the registration certificate, if granted
to him and all such forms or certificates referred to in sub‑section
(8), it shall pass an order declaring the dealer non‑taxable dealer with
effect from the first date of the assessment year in which the dealer has
presented the application. Copy of such order shall be served on the dealer. If
the claim of the dealer is found wrong, the assessing authority shall reject
the application:
PROVIDED that before rejecting the application the
dealer shall be given reasonable opportunity of being heard.
(10) Where
application of the dealer presented under sub‑section (8) has been
rejected by the assessing authority, the dealer shall continue to be liable to
pay tax from the beginning of the year in which the dealer has presented such
application.
(11) A
dealer who deals exclusively in non‑taxable goods shall not be liable to
pay tax under this Act.
(12) Where
tax is payable, and has been so paid by a commission agent on any turnover of
sales and, or, as the case may be, of purchases on behalf of his principal, the
principal shall not be liable to pay tax in respect of same turnover.
(13) Tax
payable shall become due as soon as the sale or purchase takes place but shall
be paid, deposited or recovered and assessed in accordance with the provisions
of the Act.
Explanation: For the purpose of this Act the
dissolution of a firm or association of persons or partition of a Joint Hindu
Family or transfer by a dealer of his business shall be deemed to be cessation
or discontinuance of business within the meaning of this Act.
(1) Subject
to other provisions of this Act, the tax payable by a dealer shall be paid and
be levied on-
(a) the
turnover of sales of declared goods at every point of sale at such rate not
exceeding the maximum rate of tax under section 15 of the Central Sales Tax
Act, 1956, as may be notified by the State Government;
(b) the
turnover of sales of Aviation Turbine Fuel, Diesel, Natural Gas and Petrol at
such point of sale and at such rate, not exceeding fifty percent, as may be
notified by the State Government;
(c) the
turnover of sales of all other goods at every point of sale at such rate not
exceeding fifty percent, as may be notified by the State Government:
PROVIDED that the State Government may notify different
rates of tax in respect of different goods or class of goods.
(2) Tax
on turnover of purchases of any goods referred to in sub‑section (5) of
section 3 shall be paid and be levied at the same rate at which tax on turnover
of sales of such goods is leviable in accordance with
provisions under sub‑section (1).
(3) Where
in respect of transfer of property in goods (whether as goods or in some other
form) involved in the execution of a works contract, the contractor does not
maintain proper accounts or accounts maintained by him are not worthy of
credence and the amounts actually incurred towards charges for labour and other services and profit relating to supply of labour and services are not ascertainable, such charges for
labour and other services and such profit shall be
determined on the basis of such percentage of the value of the works contract
as may be prescribed and different percentages may be prescribed for different
types of works contracts.
(4) Notwithstanding
anything contrary to the provisions of this Act where goods are sold or
purchased together with packing materials, sale or purchase of packing material
shall-
(a) be
liable to tax at the rate applicable to sale or purchase of the goods sold or
purchased together with such packing materials; or
(b) not
be liable to any tax if sale or purchase of such goods is exempt from tax at
the hands of the dealer; or
(c) be
liable to tax at the higher rate applicable to sale or purchase of goods sold
or purchased together with such packing material, if goods liable to tax at
different rates of tax or exempt from payment of tax have been packed together.
(5) Every
notification made under this section shall, as soon as may be after it is made,
be laid before each House of the State Legislature, while it is in session, for
a total period of not less than fourteen days, extending in its one session or
more than one successive sessions, and shall, unless some later date is
appointed take effect from the date of its publication in Gazette subject to
such modifications or annulments as the two Houses of the Legislature may
during the said period agree to make, so, however, that any such modification
or annulment shall be without prejudice to the validity of anything previously
done thereunder except that any imposition,
assessment, levy or collection of tax or penalty shall be subject to the said
notification or annulment,
Explanation: For the purpose of this Act the following
goods shall be deemed to be different from each other, namely-
(a) Khandsari molasses, including sheera‑sayar,
sheera‑galawat and sheera‑salawat;
(b) rab including rab‑sayar, rab‑galawat and rab‑salawat;
(c) gur‑lauta and gur rasket; accordingly nothing in section 4 or 5 shall be
construed to prevent imposition, levy or collection of tax under this Act in
respect of any one of the said goods merely because tax has been imposed,
levied or collected in respect of any other of them or vice‑versa.
5. Liability of payment of special additional tax
(1) Every
dealer who is liable to pay tax according to provisions under section 3,in
addition to tax payable under other provisions of the Act, shall, from the date
he is liable to pay tax, pay a special additional tax on the turnover of sales
of such goods at such point of sale and at such rate as may be notified by the
State Government:
PROVIDED that where any goods so notified are
purchased by a dealer from any person in the circumstances mentioned in sub‑section
(5) of section 3, dealer purchasing such goods shall be liable to pay special
additional tax on the turnover of purchases of such goods at the same rate at
which turnover of sales of such goods is liable to payment of tax
(2) For
all purposes under the Act special additional tax shall be deemed to be part of
tax.
(3) No
input tax credit shall be admissible in respect of amount of special additional
tax.
6. Liability on issuing false certificate, etc.
Notwithstanding anything to the contrary contained
elsewhere in this Act and without prejudice to the provisions of sections 52
and 54, a person who issues a false or wrong certificate or declaration
prescribed under any provision of this Act or the rules framed thereunder to another person, by reason of which a tax leviable under this Act on the transaction of purchase or
sale made with or by such other person ceases to be leviable
or becomes leviable at a concessional
rate, shall be liable to pay on such transaction an amount which would have been
payable as tax on such transaction, had such certificate or declaration not
been issued:
PROVIDED that before taking any action under this
section the person concerned shall be given an opportunity of being heard.
7. Liability in cases of proprietorship and partnership concerns
Subject to other provisions under the Act-
(i) Where business has been carried on by
an individual as proprietor of any business establishment, such person shall be
liable to pay any amount of tax or penalty or fee due under this Act, and
notwithstanding anything contained in any law for the time being in force where
any assessment has been made or any penalty has been imposed in the name of
such dealer, the person who has carried on business shall be liable to pay
amount of tax levied or penalty imposed or any other amount determined payable
or due under the Act; and
(ii) Where
business has been carried out in the name of a partnership firm, each person
who has been a partner in such firm, subject to other provisions under the Act,
shall be liable to pay jointly and severally any amount of tax, penalty or fee
which is to be paid by the firm and is due under the Act, and where any tax has
been assessed or any amount has been imposed as penalty on such firm, it shall
be deemed that such tax has been levied or penalty has been imposed on such
each person who has been a partner in the firm.
8. Liability to tax of a dissolved firm and liability
(1) Where
a dealer is a firm, or association of persons or a Joint Hindu Family, and such
firm, association or family has discontinued business,-
(a) tax,
including penalty, if any, payable under this Act by such firm, association or
family up to date of such discontinuance may be assessed and determined as if
no such discontinuance had taken place; and
(b) every
person who was at the time of such discontinuance a partner of such firm or a
member of such association or family shall, notwithstanding such
discontinuance, be liable severally and jointly for the payment of tax assessed
and penalty imposed and payable by such firm, association or family whether
such assessment is made or penalty is imposed prior to or after such
discontinuance, and, subject as aforesaid, the provisions of this Act shall
apply as if every such person or partner were himself as a dealer: PROVIDED
that where it is found that a change has occurred in the constitution of the
firm or association, the firm or association as reconstituted as well as
partners or members of the firm or association, as it existed before re‑constitution,
shall jointly and severally be liable to pay tax including penalty, if any due
from such firm or association for any period before its reconstitution.
(2) Where
the ownership of the business of any dealer liable to pay tax is transferred,
the transferor and transferee shall jointly and severally be liable to pay the
tax including penalty, if any, payable in respect of such business till the
time of such transfer, whether the assessment is made or the penalty is imposed
prior to or after such transfer.
(3) Where
a tax including penalty, if any, is recovered from a reconstituted firm or
association under the proviso to sub‑section (1) or from a transferee
under sub‑section (2), such firm or association or a transferee shall be
entitled to recover the same from the person who was originally liable to pay
the tax.
9. Liability
of payment of tax due from deceased
(1) Where
a dealer dies, his executor, administrator or other legal representative shall
be deemed to be the dealer for the purposes for this Act and the provisions of
this Act shall apply to him in respect of the business of the said deceased
dealer:
PROVIDED that-
(i) in respect of any liability of the
deceased, his executor, administrator or other representative shall be liable
only to the extent of the assets of the deceased in his hand;
(ii) any
proceedings including the proceeding for recovery, maybe continued from the
stage at which it was pending at the time of the death of the dealer.
(2) The
provisions of sub‑section (1) shall mutatis mutandis apply to a dealer
being a partnership firm which may stand dissolved in consequence of the death
of any partner.
10. Liability
in cases of minors and incapacitated Persons
In the case of any guardian, trustee or agent of any
minor or other incapacitated person, carrying on business on behalf of and for
the benefit of such minor or other incapacitated person, the tax shall be,
levied upon and recoverable from such guardian, trustee or agent, as the case
may be in like manner and to the same extent as it would be leviable
upon and recoverable from any such person or other incapacitated person, if he
were of full age and sound mind and if he were conducting the business himself;
and all the provisions of the Act and the rules made thereunder
shall apply accordingly.
11. Liability
in case of Court of Wards, etc.
In the case of business owned by a dealer whose estate
or any portion of whose estate is under the control of the Court of Wards, the
Administrator General, the Official Trustee or any Receiver or Manager
(including any person whatever his designation, who in fact manages the
business on behalf of the dealer) appointed by him or under any order of a
court, the tax shall be levied upon and recoverable from such Court of Wards,
Administrator General, Official Trustee, Receiver or Manager, in like manner
and in the same terms as it would be leviable upon
and recoverable from the dealer, as if he were conducting the business himself,
and all the provisions of the Act and the Rules made thereunder
shall apply accordingly.
12. Exemption
from tax and zero rating
(1) Notwithstanding
anything contained in this Act, no tax under this Act shall be payable and be
levied on-
(a) turnover
of sale or purchase of such goods, as may be notified by the State Government;
(b) on
the turnover of sales or purchases where such sale or purchase is-
(i) in the course of inter‑State trade
or commerce; or
(ii) outside
the State; or
(iii) in
the course of export of goods out of the territory of India or in the course of
the import of the goods into the territory of India.
Explanation: For the purpose of this Act, expressions
under sub‑clause (i), sub‑clause (ii) and
sub‑clause (iii) of clause (b) shall have the same meanings as assigned
to them under section 3, section 4 and section 5 of the Central Sales Tax Act,
1956 respectively.
(2) No
tax shall be levied under this Act on turnover of purchases of any taxable
goods where such goods are purchased for-
(i) sale in the course of export of goods
out of the territory of India; or
(ii) use
in the manufacture or processing of goods for sale in the course of export of
goods out of the territory of India; or
(iii) use
in packing of goods for sale in the course of export of goods out of the
territory of India.
(3) Amount
of tax paid to registered selling dealer in respect of purchases of goods by a
registered purchasing dealer who purchases such goods for any of the purposes
mentioned in clauses (i) to (iii) of sub‑section
(2), subject to other provisions of this Act, shall be refunded to the
purchasing dealer.
13. Rebate
of tax on certain purchases and sales
Where the State Government is satisfied that it is
expedient in the public interest so to do, it may by notification, and subject
to such conditions and restrictions as may be specified therein, allow a rebate
up to the full amount of-
(i) (a) tax
leviable on any registered dealer in respect of sale
of such goods or class of goods by such dealer, to such persons or class of
persons other than dealers, as may be specified in the notification; or
(b) tax
leviable on turnover of purchase in respect of such
goods or class of goods by such dealers or class of dealers as may be specified
in the notification, where such goods are used in manufacture or processing of
Aviation Turbine Fuel, Diesel, Natural Gas or Petrol or used in packing of such
manufactured goods; or
(c) tax
paid or payable by such dealers or class of dealers to the registered selling
dealer in respect of purchase of such goods or class of goods, as may be
specified in the notification and as are used in manufacture or processing of
Aviation Turbine Fuel, Diesel, Natural Gas or Petrol or in packing of such
manufactured goods, or
Explanation (i): Dealers
entitled for claim of rebate under sub‑clause (b) or sub-clause (c) shall
pay full amount of tax leviable on turnover of sale
or purchase and shall be entitled to claim rebate in tax payable by them to the
State Government for the period during which such goods are used for specified
purpose.
(ii) tax
payable on sale or purchase of any goods where tax on sale or purchase of such
goods is leviable under any other State Act and if it
is proved that turnover of sales and, or of purchases have been disclosed under
that Act before the authority competent to levy tax under that Act.
(1) Subject
to other provisions under this section, an amount of input tax credit as
provided in sub‑section (2) in respect of purchases from inside the
State, of taxable goods other than Aviation Turbine Fuel, Diesel, Natural Gas
and Petrol, shall be admissible and be allowed to a dealer who is liable to pay
tax under this Act.
(2) Subject
to provisions under this section:-
(I) in
respect of purchases of taxable goods other than Aviation Turbine Fuel, Diesel,
Natural Gas and Petrol where purchased goods are intended-
(i) either to be re‑sold inside the
State in the same form and same condition; or
(ii) to
be sold in the course of export of the goods out of the territory of India; or
(iii) being declared goods are intended to be
sold in the course of inter‑State trade or commerce; or
(iv) being
raw materials or consumable stores or fuels or lubricants or packing materials
are intended to be consumed or utilized or used in manufacture or processing of
any taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and Petrol
or in packing of such manufactured or processed goods, where such manufactured
or processed goods are to be sold either within the State or in the course of
the export of the goods out of the territory of India or in the course of inter‑State
trade or commerce, an amount equal to the amount of input tax shall be
admissible and be allowed as input tax credit:
PROVIDED that in relation to purchase of food grains
in pursuance of any order made under section 3 of the Essential Commodities
Act, 1955 including any purchase in excess of levy share, by any dealer who
makes purchases from the State Government or its purchasing agent, shall, in
respect of such food grains, shall be entitled to claim input tax credit of an
amount equal to an amount of tax payable by it on sale of such food grains
subject to maximum amount of input tax.
(II) In
respect of purchases of any taxable goods other than Aviation Turbine Fuel,
Diesel, Natural Gas and Petrol where such goods are intended to be consumed or
utilized or used in the manufacture or processing of any taxable goods other
than Aviation Turbine Fuel, Diesel, Natural Gas and Petrol or in packing of
such manufactured or processed goods as are intended to be consigned for
delivery at a place outside the State except by reason of a sale, a partial
amount of input tax which is in excess of four percent of tax paid or payable
in respect of purchases of such goods, shall be admissible and be allowed as
input tax credit.
(III)
(a) in respect of purchase
of capital goods other than the goods the sale or purchase of which is exempt
from levy of tax under clause (a) of sub‑section (1) of section by a
dealer where such capital goods are purchased by such dealer on or after the
date of commencement of this Act, and are intended to be consumed or utilized
or used in manufacture or processing of any taxable goods other than Aviation
Turbine Fuel, Diesel, Natural Gas and Petrol or in packing of such manufactured
or processed goods, where such manufactured or processed goods are intended to
be sold either within the State or in the course of the export of the goods out
of the territory of India or in the course of inter‑State trade or
commerce, an amount equal to the amount of input tax shall be admissible and be
allowed as input tax credit,
(b) in
respect of purchases of any capital goods liable to tax where such capital
goods are purchased on or after the date of commencement of this Act, and are
intended to be consumed or utilized or used in the manufacture or processing of
any taxable goods other than Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol or in packing of such manufactured or processed goods if such
manufactured or processed goods are intended to be consigned for delivery at a
place outside the State except by reason of a sale, a partial amount of input
tax which is in excess of four percent of tax paid or payable in respect of
purchases of such capital goods, shall be admissible and be allowed as input
tax credit.
(c) in
respect of taxable goods other than Aviation Turbine Fuel, Diesel, Natural Gas
and Petrol, purchased by a dealer within a period of three months prior to the
date of commencement of this Act for resale and held such goods in opening
stock on the date of commencement of this Act by a dealer who is liable to pay tax
from the date of commencement of this Act and the dealer furnishes the purchase
bill or cash memo issued by the selling dealer registered under the U. P. Trade
Tax Act,1948 showing the amount of tax realized, an amount of input tax credit
in accordance with provisions under clause (1) or clause (11), as may be
applicable, subject to a maximum amount of tax that would have been payable in
respect of purchase of such goods under provisions of this Act had this Act
been applicable on the date of purchase of such goods, shall be admissible and
be allowed as input tax credit.
Explanation: For removal of doubts it is made clear
that under this Act no input tax credit shall be admissible-
(a) in
respect of purchases of goods other than declared goods where such goods are
intended to be sold or are sold in the course of inter‑State trade or
commerce;
(b) in
respect of purchases of goods that are intended to be consigned or have been
consigned for delivery at a place outside the State;
(c) in
respect of purchases of any goods that are intended to be sold or have been
sold by way of transfer of property in goods (whether as goods or in some other
form) involved in the execution of a works contract or if such goods are
intended to be consumed or have been consumed in the execution of a works
contract;
(d) in
respect of purchases of goods that are intended to be sold or have been sold
under an agreement of transfer of right to use any goods (whether or not for a
specified period ) for any purpose;
(e) in
respect of purchases of goods that are stolen or lost or destroyed or disposed
of in any manner other than in the ordinary course of business;
(f) in
respect of purchase of a generator or a captive power plant including their
parts, components and accessories where such goods are intended to be used or
have been used by the dealer;
(g) in
respect of any capital goods that have been purchased for use or have been used
in the manufacture or processing of goods or in packing of any such
manufactured or processed goods if such capital goods have been purchased
before the date of commencement of this Act;
(h) in
respect of purchase of capital goods if such capital goods are intended to be
used or have been used in the manufacture or processing of goods other than
taxable goods and Aviation Turbine Fuel, Diesel, Natural Gas and Petrol or in
packing of such manufactured or processed goods or if such capital goods are
intended to be used in execution of works contract;
(i) in respect of purchase of capital goods
that are purchased either for use in manufacture or processing of goods or for
use in packing of such manufactured or processed goods, provided that rate of
tax on such capital goods is four percent or lower and if manufactured or
processed goods are intended to be consigned for delivery at a place outside
the State except by reason of a sale.
(j) in
respect of purchase of such capital goods the sale or purchase of which is
liable to tax at a rate of four percent or lower than four percent and such
capital goods are either intended to be used or have been used in manufacture
or processing of goods or, in packing of manufactured or processed goods where
such manufactured or processed goods are intended to be consigned or have been consigned
for delivery at a place outside the State except by reason of a sale;
(k) in
respect of purchase of any capital goods if such goods are intended to be used
or have been used in the manufacture or processing of any goods or in packing
of such manufactured or processed goods, provided that such manufactured or
processed goods are-
(a) either
intended to be sold or have been sold by way of transfer of property in goods
(whether as goods or in some other form) involved in the execution of a works
contract; or
(b) intended
to be sold or have been sold byway of transfer of right to use any goods
(whether or not for a specified period) for any purpose.
(1) in
respect of purchase of such capital goods as are not intended for use in
manufacture or processing of goods or for packing of such manufactured or
processed goods, for the purpose of sale by the dealer; or if such capital
goods are not exclusively meant for use in manufacture or processing of goods
or for use in packing of such manufactured or processed goods, for the purpose
of sale by the dealer;
(m) in
respect of purchase of any goods as are liable to tax at a rate of four percent
or lower, and if such goods are intended to be used or have been used as raw
material or consumable stores or fuels or lubricants or packing materials, in
manufacture or processing of goods or in packing of such manufactured or
processed goods, if such manufactured or processed goods are intended to be
consigned or have been consigned for delivery at a place outside the State
except by reason of a sale;
(n) in
respect of purchase of such goods as are taxable at a rate greater than four
percent, partial amount of input tax to the extent it exceeds four percent of
the turnover, if such purchased goods are intended to be used or have been used
as raw materials or consumable stores or fuels or lubricants or packing
materials in the manufacture or processing of goods, or in packing of such
manufactured or processed goods, if such manufactured or processed goods are
intended to be consigned or have been consigned for delivery at a place outside
the State except by reason of a sale;
(o) in
respect of purchase of any goods that were purchased for use as raw materials
or consumable stores or fuels or lubricants or packing materials for use in
manufacture or processing of goods or packing of such manufactured or processed
goods, if such goods and, or, as the case may be, any manufactured or semi‑manufactured
or processed or semi‑processed goods that have been produced using such
purchased goods, are stolen or lost or destroyed or gifted or given free of
cost or disposed of in any manner, other than in the ordinary course of
business;
(p) in
respect of purchase of such goods as are not exclusively meant for use as raw‑material
or consumable stores or fuels or lubricants or packing materials for use in the
manufacture or processing of goods or packing of such manufactured or processed
goods for sale by the dealer;
(q) in
respect of purchase of goods that are intended to be used or have been used as
raw‑materials or consumable stores or fuels or lubricants or packing
materials, in the manufacture or processing of goods or in packing of such
goods, if such manufactured or processed goods are-
(a) either
intended to be sold or have been sold by way of transfer of property in goods
(whether as goods or in some other form) involved in the execution of a works
contract; or
(b) intended
to be sold by way of transfer of right to use any goods (whether or not for a
specified period) for any purpose.
(r) in
respect of purchase of such capital goods as were used or were acquired for use
by any other dealer earlier inside the State;
(s) in
respect of purchase of goods which remain in stock whether goods as such or as
constituents of finished or semi‑finished goods-
(i) at the time of discontinuance of business, as closing stock;
or
(ii) on
the date from which cancellation of registration is effective, as opening
stock; or
(iii) on
the date from which the dealer is declared non taxable, as opening stock; or
(iv) that
are sold by a selling commission agent on behalf of a principal; or
(v) except
as provided in sub‑clause (c) of clause of sub‑section (2), that
have been purchased on a date prior to the date on which the dealer becomes
liable to pay tax under this Act; and in respect of purchases of goods that
have been used as fuel, lubricants and other consumables in manufacture or
processing of goods held in stock as aforesaid;
(t) in
respect of purchases of goods if tax payable to the State Government by the
purchaser himself in respect of purchases of such goods under this Act or under
the U.P. Trade Tax Act, 1948 has not been paid;
(u) in
respect of purchases if tax is not payable on any earlier sale or purchase of
such goods under this Act or under the U.P. Trade Tax Act, 1948;
(v) in
respect of goods which have been purchased from a dealer who has opted scheme
of payment of composition money in lieu of tax on the turnover of sale and, or,
as the case may be, of purchase of such goods;
(w) in
respect of amount of tax paid or payable as Special Additional Tax; or
(x) in
respect of purchases of goods that are intended to be consumed or utilized or
used in the manufacturing or processing of any goods in respect of sale of which
rebate is admissible under clause (11) of section 13.
(y) in
respect of purchases of any goods which-
(i) either are any of the goods amongst
Aviation Turbine Fuel, Diesel, Natural Gas and Petrol; or
(ii) have
been purchased before the date of commencement of this Act but have not been
purchased for resale within the State.
Explanation I: For the purpose of this section
expressions "goods held in opening stock" and "goods held in
closing stock" on any date, in reference to input tax credit and reverse
input tax credit refers to-
(i) in case of a dealer other than a
manufacturer or manufacturer‑cum‑trader all taxable goods except
Aviation Turbine Fuel, Diesel, Natural Gas and Petrol, held in stock by the
dealer in the same form and condition in which those were purchased; and
(ii) in
case of a manufacturer or manufacturer‑cum‑trader
(a) all
taxable goods except Aviation Turbine Fuel, Diesel, Natural Gas and Petrol,
held in stock by the dealer in the same form and condition in which those were
purchased;
(b) goods
used in manufacture or processing of any taxable goods (whether finished or
not) except Aviation Turbine Fuel, diesel, Natural Gas and Petrol; and
(c) goods
used in packing of such manufactured or processed goods.
Explanation II: Capital goods for the purpose of this
section carries the same meanings as assigned to it under clause (XII) of
Section 2, but does not include-
(a) goods
other than taxable goods and Aviation Turbine Fuel, Diesel, Natural Gas and
Petrol, and
(b) such
capital goods as are intended to be used in manufacture or processing of
Aviation Turbine Fuel, Diesel, Natural Gas, Petrol and goods the sale or
purchase of which is exempt from payment of tax under clause (a) of sub‑section
(1) of section 12 or in packing of such goods.
(c) a
captive power plant and generator.
Explanation III: Raw‑materials or consumable
stores or fuels or lubricants or packing materials do not include Aviation
Turbine Fuel, Diesel, Natural Gas, Petrol and goods the sale or purchase of
which is exempt from payment of tax under clause (a) of sub‑section (1)
of section 12.
Explanation IV: Input tax does not include-
(i) the amount of tax paid or payable
whether to the seller of the goods or to the State Government in respect of
purchases of Aviation Turbine Fuel, Diesel, Natural Gas, Petrol and goods the
sale or purchase of which is exempt from payment of tax under clause (a) of sub‑section
(1) of section 12 or in packing of such goods.
(ii) amount
of Special Additional Tax paid or payable on purchase of any goods under
provisions of section 5 of the Act.
(3) Amount
of input tax credit for a tax period shall be computed in the following manner:
For each purpose the commodity purchased during a tax
period is intended to be sold, or used or consumed or utilized amount of input
tax credit if allowable according to provisions under sub‑section (2),
shall be computed separately for each purpose by using the following formula:
M x N
Where-
M: represents
full or the partial amount of input tax for the tax period, as may be
applicable, according to provisions of sub‑section (2) for a particular
purpose; and
N: represents
the extent (expressed as percentage) to which the dealer purchased such
commodity during the period for the particular purpose.
The amount of input tax
credit in respect of purchases of a particular commodity during the tax period
shall be the aggregate of all amounts of input tax credits computed in respect
of each purpose the commodity purchased is to be utilized. Total amount of
input tax credit shall be the aggregate of input tax credits for all
commodities.
(4) For
the purpose of claiming partial or full amount of input tax credit in respect
of goods mentioned in sub‑clause (c) of clause (III) of sub‑section
(3) held in opening stock on the date of commencement of this Act, the dealer
shall prepare and submit inventory of such goods along with details of partial
or full amount of input tax credit within a period of thirty days from the date
of commencement of this Act, to its assessing authority. The assessing
authority shall examine the claim of the dealer and for this purpose the
assessing authority may make any such enquiry as it considers necessary. If the
assessing authority is satisfied that the amount of partial input tax credit or
full input tax credit, as the case may be, appears to be correct, it shall
intimate the dealer and in a case in which assessing authority is of the
opinion that amount of partial input tax credit or full input tax credit
claimed by the dealer is not reasonable in view of the facts found, it, after
giving reasonable opportunity of being heard to the dealer, shall determine by
passing an order, the partial or full amount of input tax credit that may be
allowed to the dealer.
(5) Amount
of input tax credit in respect of capital goods shall be claimed and allowed in
the following manner:
Total amount of input tax credit in respect of any
capital goods shall be divided into two parts. First part will represent the
partial amount of input tax which is payable or is paid in excess of four
percent on purchase of such capital goods (such amount of input tax in this sub‑section
hereinafter referred to as the plus amount of input tax) and the second part
will represent the remaining amount of input tax on such capital goods
(hereinafter referred to as the remainder amount of the input tax). Out of the
plus amount of input tax, input tax credit shall be allowed and be claimed in five
successive annual installments of equal amount, each installment to be claimed
in the return of the first tax period and first such installment shall be
claimed in the return of the first tax period of the assessment year subsequent
to the assessment year in which such capital goods have been purchased.
Out of the remainder amount of input tax, input tax
credit shall be claimed in five successive assessment years first such
assessment year being the assessment year subsequent to the assessment year in
which such capital goods have been used in manufacture or processing or packing
of manufactured goods for full assessment year. Amount of input tax credit in a
particular assessment year out of the remainder amount of input tax shall be
claimed in the return of the first tax period of such assessment year and
amount of input tax credit for each assessment year out of the remainder amount
of input tax shall be computed according to following formula:
Amount of input tax credit for any assessment year out of the remainder
amount of input tax =(R x A)/ (5 x T)
Where-
R‑ Represents the
amount of remainder input tax
A ‑ Represents
aggregate of sales under the clauses (i), (ii) and
(iii) below, during the assessment year preceding the assessment year in which
input tax credit is to be claimed.
(i) sales inside the State;
(ii) sales
in the course of export; and
(iii) sales
in the course of inter‑State trade or commerce.
T ‑ represents
the sum of the turnover of sales of manufactured goods sold in any manner and
value of manufactured goods consigned to a place outside the State during the
assessment year preceding the assessment year in which input tax credit is to
be claimed.
Total amount of input tax credit in any assessment
year in respect of purchase of capital goods shall be the sum of two amounts of
input tax credits as computed above.
(6) In
the circumstances and in respect of goods or, as the case may be, of amount
mentioned below input tax credit shall not be admissible and if it has been
claimed by the dealer, it shall stand reversed:-
(i) in case of a dealer who discontinues
business, in respect of goods held in opening stock in the same condition in
which those were purchased and in respect of goods or class of goods used in
manufacture or processing or packing of goods held in opening stock on the date
of discontinuance of business; or
(ii) in
case of a dealer whose registration certificate is cancelled, in respect of
goods held in opening stock in the same condition in which those were purchased
and in respect of goods or class of goods used in manufacture or processing or
packing of goods held in opening stock on the date from which cancellation of
registration certificate is effective; or
(iii) in
case of a dealer in whose case if purchased goods or goods manufactured or
processed out of any purchased goods, are stolen or destroyed or lost or
disposed of otherwise than in the ordinary course of business, in respect of
purchased goods or as the case may be, in respect of the goods used in
manufacture or processing or packing of goods, stolen or destroyed or lost or
disposed of otherwise than in the ordinary course of business; or
(iv) where
for any reason by a dealer excess input tax credit has been claimed, in respect
of goods in respect of which input tax has wrongly been claimed; or
(v) in
case of a dealer who returns any purchased goods to the selling dealer within
six months of the date of purchase of such goods, in respect of goods returned
to the selling dealer; or
(vi) in
case of a dealer who has received credit note from selling dealer for the
amount of tax charged in excess of the tax due according to the provisions of
this Act, in respect of excess amount of input tax in respect of which credit
note has been received; or
(vii) in
case of a dealer who has been declared non‑taxable under sub‑section
(13) of section 3 by the assessing authority, in respect of goods held in
opening stock in the same condition in which those were purchased and in
respect of goods or class of goods used in manufacture or processing or packing
of goods held in opening stock on the date from which he is declared non‑taxable;
or
(viii) in case of a dealer who opts any scheme of
composition of tax liability under section 26 of the Act, in respect of-
(a) goods
or class of goods held in stock on the date of commencement of the period of
composition in the same condition in which those were purchased; and
(b) goods
or class of goods used in manufacture or processing of goods or in packing of
such manufactured or processed goods where such manufactured or processed or
packed goods are held in opening stock on the date of commencement of the
period of composition of tax liability.
Amount of reverse input tax
credit shall be computed in prescribed manner and shall be payable by the dealer along with compound interest at a rate of
eighteen percent per annum from the date immediately succeeding the last date
prescribed for filing return of such tax period for which such input tax credit
was claimed till the date of its payment.
(7) Claim
of input tax credit shall be made in the following manner:
(i) In respect of goods held in opening
stock on the date of commencement of this Act in respect of which partial or
full amount of input tax credit is admissible according to provisions under sub‑clause
(c) of clause (III) of sub‑section (2), input tax credit shall be claimed
in six equal monthly installments and first such installment shall be claimed
in the return of the tax period that commences after expiry of a period of
three calendar months from the date of commencement of this Act.
(ii) In
respect of capital goods, amount of input tax shall be claimed in accordance
with the provisions under sub‑section (5).
(iii) In
other cases input tax credit shall be claimed in the return of the tax period
in which purchases of goods to which such input tax credit relates, have been
made. Amount of input tax credit along with amount of input tax credit carried
forward from immediately preceding tax period shall be adjusted against the
aggregate of amount of tax payable and the amount of reverse input tax credit,
if any, due for the tax period. If after adjustment an excess amount of input
tax credit is left, it will be adjusted towards the tax payable for the same
tax period under the provisions of the Central Sales Tax Act, 1956.
Remaining amount of input tax credit, if any shall be
carried forward in the return of the next tax period and shall be added in the
amount of input tax credit for that tax period. If after submission of return
for the last tax period of the assessment year, amount of input tax credit
exists, the same shall be adjusted towards any amount due from such dealer
either under this Act or under the Central Sales Tax Act, 1956 or under the
U.P. Trade Tax Act, 1948. If after such adjustment, any amount is found
refundable to the dealer and if the dealer has not made any request to withhold
such amount towards his future liabilities, subject to provisions under section
41, the same shall be refunded to the dealer. Subject to provisions under
section 41, a compound interest at a rate of twelve percent per annum shall be
allowed on such amount of refund from the date following the last date
prescribed for submitting the return till the date refund is allowed. If the
return for the last tax period is submitted after the expiry of the time
prescribed, if refund is due, the same shall be allowed along with compound
interest at a rate of twelve percent per annum from first date of the month
succeeding the month in which such return has been furnished till the date of
refund.
(8)
(i) In
respect of purchases by a dealer of goods which are liable to tax at the point
of sale, no input tax credit shall be allowed if original copy of sale invoice
or bill or cash‑memo issued by the registered dealer selling the goods in
the prescribed manner is not produced before the assessing authority or if on
such sale invoice or bill or cash‑memo amount of tax realized by seller
is not shown separately or if the name and registration number of the dealer
claiming input tax credit are not mentioned on it.
(ii) No
input tax credit shall be allowed in respect of purchases on which purchaser
himself is liable to pay tax unless he proves that he has paid tax on such
purchases.
(iii) No
input tax credit shall be allowed in respect of purchases of goods in respect
of which dealer is liable to deduct amount of tax in accordance with provisions
under clause (C) or clause (D) of sub‑section (1) of section 31, unless
the dealer proves that after deduction, the amount of tax has been deposited in
the prescribed manner:
PROVIDED that in special prescribed circumstances
input tax credit may be allowed even if sale invoice or bill or cash‑memo
as required above is not produced.
(9) The
methods that are used by a dealer in an assessment year to determine the extent
to which goods are used, consumed or supplied or intended to be used or
consumed or supplied in the course of making sales or disposal of goods shall
be fair, reasonable and in intelligible form in the circumstances.
(10) Subject
to other provisions input tax credit shall be admissible in respect of only
those goods which are purchased from within the State.
(11) In
case of a dealer who opts any scheme of composition of tax liability under
provisions of section 26 of the Act, input tax credit shall not be admissible
in respect of-
(i) purchases made during the period of
scheme, of goods or class of goods in respect of which scheme of composition of
tax liability has been accepted;
(ii) purchases
made during the period of scheme, of goods or class of goods required for use
in the manufacturing or processing of any goods or class of goods or for use in
packing of such manufactured or processed goods in respect of which scheme of
composition of tax liability has been accepted; or
(iii) goods
held by the dealer in opening stock on the date of commencement of the period
under scheme.
(12) Input
tax credit shall not be allowed against such purchase invoice or bill or cash
memo as is obtained by the dealer from any dealer without making purchase of
goods shown in such purchase invoice or bill or cash memo.
(13) Where
any goods are sold by a principal through a selling agent, input tax credit in
respect of purchases of such goods shall be claimed by the principal.
(14) Where
in case of a manufacturer account books have not been maintained by a dealer or
account books maintained by the dealer are not found worthy of credence or,
purchase value of goods consumed or used or utilized in manufacture or
processing of any goods including semi‑manufactured or semi-processed
goods is not ascertainable from the account books maintained, purchase value of
such goods shall be determined in the prescribed manner
(15) in
respect of purchase of goods which remain in stock whether goods as such or as
constituents of finished or semi‑finished goods-
(a) at the
time of discontinuance of business, as closing stock; or
(b) on
the date from which cancellation of registration is effective, as opening
stock; or
(c) on
the date from which the dealer is declared non‑taxable, as opening stock;
or
(d) that are sold by a selling commission agent
on behalf of a principal; or
(e) except
as provided in sub‑clause (c) of clause (IV) of sub‑section (2),
that have been purchased on a date prior to the date on which the dealer
becomes liable to pay tax under this Act; and in respect of purchase of fuel,
lubricants and other consumable goods, consumed in manufacture or processing of
goods held in stock as aforesaid, if input tax credit has been already claimed,
the same shall stand reversed.
15. Net tax
payable by a dealer
(1) The
net amount of tax payable by a dealer for a tax period shall be determined
according to the formula:
(A ‑ B)
Where:-
A: represents the aggregate of-
(i) amount of tax payable according to
provisions of section 3 and section 4 of the Act on turnover of sales or
purchases or both, as the case may be, of taxable goods during the tax period,
(ii) amount
of Special Additional Tax payable under provisions of section 5,
(iii) amount
payable during the tax period under the provisions of section 26 of the Act,
and
(iv) any
amount of reverse input tax credit payable.
B: represents the aggregate of:-
(i) amount of input tax credit according to
provisions under section 14,
(ii) amount
of input tax credit carried forward from immediately preceding tax period
return,
(iii) amount
of rebate admissible according to provisions under section 13, and
(iv) amount
of tax deducted at source by purchasers of goods in accordance with provisions
under section 34 in relation to purchases during the tax period.
(2) Where
amount determined by using formula under sub‑ section (1) is a negative
amount, the dealer shall carry forward such amount to be added in input tax
credit amount of succeeding period, the above process shall be applicable in respect
of tax returns of all the periods for the assessment year and if net tax
payable calculated according to formula under sub‑section (1) for the
last tax period is negative amount, such amount shall, subject to provisions
Linder sections 40 be refunded to the dealer within thirty days after expiry of
the period prescribed for the submission of return for the last tax period:
PROVIDED form negative amount as aforesaid amount
payable under the Central Sales Tax Act, 1956 may be adjusted and remaining negative
amount if any shall be carried forward in the next tax period.
(3) If
amount found refundable referred to in sub‑section (2) is not refunded in
accordance with the provisions under section 40 within the time prescribed, the
dealer shall be entitled for simple interest at a rate of nine percent per
annum from the date following the last date prescribed for submitting return
for the last tax period till the date refund is given and if the return for the
last tax period is submitted after the prescribed date for submitting such
return amount of interest shall be allowed from first day of the month after
expiry of month succeeding the month in which return for the last period of the
year has been filed.
(4) If
the amount of net tax payable in any return or revised return for any tax
period is not paid within the time prescribed for submission of return of such
tax period dealer, shall be liable to pay interest according to provisions of
sub‑section (2) of section 33 of the Act.
(5) Following
amounts shall be deposited separately by the dealer or other person and no
deduction whatsoever shall be made from such amount:
(i) the amount of tax deducted by a dealer
or some other person from sellers of goods in accordance with provisions of
section 34, and
(ii) the
amount wrongly realised as tax from purchasers of
goods.
16. Certain
presumptions and burden of proof
For all purposes under the Act-
(I) In
any assessment proceedings where any fact is specially within the knowledge of
the assessee, the burden of proving that shall lie
upon him, and in particular, the burden of proving the existence of the
circumstances bringing the case within any of the exemptions, exceptions or reliefs under any provisions of this Act, shall lie upon
him and assessing authority shall presume the absence of such circumstances.
(II) Where
a driver or the person in charge of any vehicle obtains an authorization for
transit of any goods through the State under section 50 of the Act and
undertakes the responsibility to transport such goods outside the State, but
fails to produce such goods along with authorization for transit before the
officer in‑charge of the exit check post, unless after furnishing proper
and sufficient evidence it is proved that such goods have been taken outside
the State, it shall be presumed that the owner of such vehicle in collusion
with the transporter who has issued goods receipts in respect of such goods,
the person in charge of the vehicle and the person who has hired the vehicle,
after importing such goods inside the State, have sold such goods inside the
State. In such a case owner of the vehicle, the transporter, the person in
charge and hirer of vehicle shall jointly and severally be liable to pay tax on
such presumed sales of goods and also for payment of amount of penalty that may
be imposed under the Act.
(III) Where
a driver or person in charge of any vehicle while obtaining authorization for
transit of any goods through the State under section 50 of the Act, undertakes
responsibility of handing over such goods to some other bonafide
person or transporter inside the State for transporting such goods outside the
State, but fails to prove that the goods were handed over to such bonafide person or transporter and if it is found that the
goods have not been transported outside the State, it shall be presumed that
such goods have been imported with a view to evade payment of tax and have been
sold inside the State by the owner of the vehicle in collusion with the
transporter who has issued goods‑receipts in respect of such goods, the
person in charge of the vehicle and the person who has hired the vehicle. In
such a case such transporter, owner of the vehicle, the person in charge and
the hirer of the vehicle shall jointly and severally be liable to pay tax
assessed on such presumed sales of such goods and for payment of amount of
penalty that may be imposed under the provision of this Act.
(IV) Where
a driver or person in charge of any vehicle while obtaining authorisation
for transit any taxable goods through the State under section 50, declares that
goods after entry into the State shall be transported outside the State by some
other transporter inside the State by some other vehicle and such driver or
person in charge of vehicle while obtaining authorisation
for transit at the entry check post undertakes responsibility of carrying goods
outside the State, if it is found that the goods have not been carried outside
the State, unless after furnishing proper and sufficient evidence, otherwise is
proved, it shall be presumed that the owner of such vehicle in collusion with
the transporter who has issued goods‑receipts in respect of such goods,
the person in charge and the hirer of the vehicle, after importing such goods
inside the State have sold the such goods inside the State. In such a case the
owner of the vehicle, the transporter who has issued goods‑receipts in
respect of such goods, the person in charge and the person who has hired the
vehicle, shall jointly and severally be liable to pay tax assessed on such
presumed sales of such goods and for payment of amount of penalty that may be
imposed under the provisions of the Act.
(V) Where
a driver or person in charge of any vehicle while obtaining authorization for
transit of any goods through the State under section 50, discloses that goods
will be handed over to some bonafide transporter
inside the State for transporting them outside the State, and does not
undertake responsibility of taking goods outside the State, the burden to prove
that the goods were handed over to such bonafide
transporter inside the State, shall lie upon the owner of the vehicle and
person in charge of the vehicle. In such a case if it is found that the goods
have not been carried outside the State, and if the driver or the person incharge of the vehicle after furnishing proper and
sufficient evidence proves that the goods were handed over to such bonafide transporter, it shall be presumed that such
transporter in collusion with the transporter who has issued goods‑receipts
in respect of such goods and the person who has hired the vehicle, after having
imported such goods inside the State, have sold such goods inside the State.
In such a case such transporter within the State and
transporter outside the State who has issued goods‑receipts in respect of
such goods and the person who has hired the vehicle shall jointly and severally
be liable for payment of tax assessed on such presumed sales of goods and for
payment of amount of penalty that may be imposed under the Act:
PROVIDED that if it is found that goods have not been
carried outside the State and if the transporter inside the State, after
furnishing proper and sufficient evidence proves that the goods were handed
over to some other vehicle for transport outside the State, it shall be
presumed that the transporter who has issued goods‑receipts in respect of
such goods, transporter inside the State to whom such goods were handed over in
collusion with the owner of the vehicle to whom goods were handed over by the
transporter inside the State in collusion have sold such goods inside the State
and in such circumstances they shall jointly and severally be liable to pay tax
assessed on such presumed sales of such goods and for payment of amount of
penalty that may be imposed under Act.
(VI) Where
at a check post or at any other place inside the State, it is found that any
taxable goods for the purpose of business, are being imported without a form of
declaration prescribed under clause (a) of sub‑sections (2) of section 48
unless after furnishing proper and sufficient evidence otherwise is proved, it
shall be presumed that,-
(i) such goods are being imported with a
view to evade payment of tax under this Act; and
(ii) such
goods are being imported with a view to evade payment of tax on sales of such
goods:
PROVIDED that if goods are meant for use in
manufacture or packing of any goods, it shall be presumed that goods are being
imported with a view to evade payment of tax on sale of goods to be
manufactured or packed.
(VII) Where
it is found that any dealer while importing taxable goods has shown purchase
lesser than the fair market purchase value of such goods then-
(i) in a case of manufacturer of goods, if
such goods are raw materials or packing materials or containers or consumable
stores it shall be presumed that part of the purchase value of such goods has
been suppressed with a view to show the sale value lesser than the actual value
of goods to be manufactured, with a view to evade part payment of tax on the
sale value of goods to be manufactured; and
(ii) in
a case of a dealer who is importing such goods for resale inside the State, it
shall be presumed that purchase value of such goods have been shown less with a
view to show sale value lesser than the actual sale value of such goods with a
view to evade part payment of tax on sale value of such goods.
(VIII) Where any goods relating to business are
traced to a bonafide dealer and are found in any building or place or vessel belonging to
the dealer but the dealer has not accounted for such goods in books, accounts
or documents maintained by him in the ordinary course of business or where any
goods traced to a bonafide dealer are found in any
other place or building or vessel or vehicle whether belonging to the dealer or
not, are on inward journey to the business place of the dealer but such goods
are not accompanied by the prescribed documents-
(i) if there is evidence about import of
the goods by the dealer, it shall be presumed that such goods have been
imported with a view to evade payment of tax on sale of such goods; and
(ii) if
there is no evidence about import of goods by the dealer, it shall b6 presumed
that such goods have been purchased with a view to evade payment of tax on
purchase and, or sales of such goods:
PROVIDED that if goods found are for use in
manufacture or processing of any goods, in the circumstances under clause (i) above it shall be presumed that goods manufactured by
using such goods shall be sold without payment of tax and in the circumstances
under clause (ii) above, it shall be presumed that such goods have been
purchased with a view to evade payment on purchase of such goods and tax on
sale of goods to be manufactured by using such goods:
PROVIDED FURTHER that if goods found are goods manufactured
by the dealer, it shall be presumed that goods used in the manufacture of the
goods found, have been purchased from within the State with a view to evade
payment of tax on purchase of goods and manufactured goods will be sold without
payment of tax.
(IX) Where
any goods relating to business found in any place or building or vessel or
vehicle are traced to any bonafide dealer and are
found in onward journey to a place which does not belong to the dealer, if such
goods are not accompanied by the documents prescribed under the Act-
(i) if there is evidence about import of
the goods by the dealer, it shall be presumed that such goods have been
imported with a view to evade payment of tax on sale of such goods; and
(ii) if
there is no evidence about import of goods by the dealer, it shall be presumed
that such goods have been purchased with a view to evade payment of tax on
purchase and have been sold with a view to evade payment of tax on sale of such
goods:
PROVIDED that if goods found are goods manufactured by
the dealer, it shall be presumed that goods used in the manufacture of such
goods, have been purchased from within the State with a view to evade payment
of tax on purchase of goods and manufactured goods have been sold without
payment of tax.
(X) Where
any goods relating to business are found in custody of any person who carry on
activities ancillary or incidental to or in connection with business mentioned
in the Explanation to sub‑section (1) of section 40 claims to carry on
any profession other than business, if such person fails to show entries of
such goods in books or accounts or documents maintained by him in the ordinary
course of such his profession or service and also fails to prove that the same
belong to some other person or dealer, he shall be deemed to be owner of such
goods and in respect of such goods-
(i) if there is evidence about import of
the goods, it shall be presumed that such goods have been imported with a view
to evade payment of tax on sale of such goods; and
(ii) if
there is no evidence about import of goods, it shall be presumed that such
goods have been purchased with a view to evade payment of tax on purchase and,
or sale of such goods.
(XI) Where
any books or accounts or documents found in any place or building or vessel or
vehicle unless themselves reveal that they belong to some other dealer or
person or unless the person incharge of such place or
building or vessel or vehicle, after furnishing proper and sufficient evidence
proves that the same belong to some other person or dealer, such books,
accounts or documents shall be deemed to belong to such person incharge of such place or building or vessel or vehicle and
if such books or accounts or documents contain transactions relating to
business of purchase and sale of goods, unless proved otherwise such
transactions shall be deemed to have been made by such person incharge in the course of business and such person shall be
deemed a dealer in respect of such transactions.
(XII) Where
any transactions of sale and, or purchase are found recorded in any books or
accounts or documents relating to a dealer and if such transactions are not
found recorded in the books or accounts or documents maintained by the dealer
in the ordinary course of business-
(i) if there is evidence to show that the
dealer has imported such goods, it shall be presumed that such goods have been
imported with a view to evade payment of tax on sale of such goods; and
(ii) if
there is no evidence to show that the goods have been imported by the dealer
and if the dealer fails to produce sale invoice or bill or cash memo issued by
registered selling dealer from whom such goods have been purchased , it shall
be presumed that goods have been purchased with a view to evade payment of tax
on purchase and, or sale of such goods:
PROVIDED that if goods were for use in manufacture of
goods in the circumstances referred to in clause (i)
above, it shall be presumed that goods have been imported with a view to evade
payment of tax on sale of such manufactured goods if manufactured goods are
taxable goods and in the circumstances referred to in clause (ii) above it
shall be presumed that the goods are purchased with a view to evade payment of
tax on purchase of such goods and tax on sale of manufactured goods if such
manufactured goods are taxable goods.
(iii) if
the dealer proves or if it is found that goods were received from a principal
for sale by the dealer in the capacity of commission agent, it shall be
presumed that such goods were received for sale with a view to evade payment of
tax on sale of such goods.
(XIII) Unless
after furnishing proper and sufficient evidence proved otherwise, transactions
found in any books, accounts or documents found in any place, building, vessel
or vehicle belonging to a dealer shall be deemed to have been made by such
dealer in connection with his business.
(XIV) Where
in respect of purchase of any goods from within the State it is mandatory to
obtain transport memo or a challan, as the case may
be, referred to in sub‑section (6) of section 21, if the same has not
been obtained and preserved it shall be deemed that purchases have been made
with a view to evade payment of tax. Where purchased goods are meant for use in
manufacture of any taxable goods, it shall be presumed that such goods have
been purchased with a view to evade payment of tax on sale of goods to be
manufactured.
(XV) Where
in respect of sale of any goods or class of goods transport memo or a challan, as the case may be, referred to under section 21
is mandatory to be issued and is mandatory to accompany the goods during
transit, if the same has not been issued or if goods are not accompanied by
such transport memo or challan, it shall be presumed
that selling dealer has kept sales or dispatches of such goods outside the
books, accounts or documents maintained by him in the ordinary course of
business.
(XVI) Where
a dealer or his agent, after taking delivery of goods from the seller, himself
has consigned the goods or is carrying such goods himself as personal luggage,
if it is found that some of the goods are not covered by transport memo or challan or transfer invoice, as may be applicable, made
available or produced by such dealer or agent, unless proved otherwise it shall
be presumed that such excess goods found have been purchased with a view to
evade payment of tax on purchase of such goods and will be sold without payment
of tax. Where goods are for use in manufacture of any goods it shall be
presumed that manufactured goods shall be sold without payment of tax.
(XVII) Where a dealer
obtains any purchase invoice or bill or cash‑memo from a registered dealer
without making purchase of goods shown in such purchase invoice or bill or cash‑memo,
it shall be presumed that the dealer obtaining such document has purchased
goods of equal quantity or measure and of value shown in such document from
other persons with a view to evade payment of tax on purchase of such goods in
the circumstances in which tax cannot be levied on the person selling such
goods.
REGISTRATION, MAINTENANCE OF ACCOUNTS, SECURITY IN THE
INTEREST OF REVENUE, ETC.
(1)
(a) Every dealer who held
a registration certificate or a provisional registration certificate issued
under any provisions the U.P. Trade Tax Act, 1948 on the date immediately
preceding the date of commencement of this Act, and is liable to pay tax from
the date of commencement of this Act, if registration certificate or the
provisional registration certificate granted to him has not been cancelled
before the date of commencement of this Act by the assessing authority under
that Act, shall be deemed to be a registered dealer on the date of commencement
of this Act,
(b) Every
dealer who had obtained registration voluntarily under the provisions of U.P.
Trade Tax Act, 1948 and if neither registration certificate granted to him
under that Act has been cancelled before the commencement of this Act nor such
dealer has discontinued business till the date of commencement of this Act;
shall be deemed to be a registered dealer under this Act on the date of
commencement of this Act:
PROVIDED that where a dealer who has been a registered
dealer under the provisions of the U.P. Trade Tax Act, 1948 immediately before
the commencement of this Act, but in view of the increase in the threshold
limit as mentioned in clause (i) or clause (ii), as
may be applicable, of sub‑section (6) of section 3 such dealer has not
remained liable to pay tax under this Act, if the dealer desires to retain
registration certificate as voluntary registration certificate, he may apply
for continuation of registration on the prescribed form of application for
registration to the prescribed authority within thirty days from the date of
commencement of this Act:
PROVIDED FURTHER that if any dealer referred to in
clause (a) or (b) or proviso above was required to pay any fee for renewal of
the registration certificate under the provisions of U.P. Trade Tax Act, 1948,
if the same has not been paid, registration certificate under clause (a) or
clause (b) above shall not be deemed valid on the date of commencement of this
Act, but if such dealer deposits amount of renewal fee along with rupees one
hundred as late fee within thirty days from the date of commencement of this
Act, he shall be deemed to be registered dealer from the date on which he
presents application to the prescribed authority in the form prescribed for
obtaining registration.
(2) Every
dealer who had applied for grant of registration certificate under any
provision of the U.P. Trade Tax Act, 1948, before the date of commencement of
this Act, and whose such application is pending for disposal before assessing
authority under that Act, if registration certificate is granted to him under
that Act, and if he has not discontinued business on the date of commencement
of this Act, shall be deemed a registered dealer with effect from the date of
commencement of this Act, provided he deposits renewal fee if required, within
thirty days from the date of commencement of this Act:
PROVIDED that if any dealer otherwise is not liable to
pay tax under this Act from the date of commencement of this Act according to
provisions under section 3, he shall not be deemed a registered dealer unless
he presents application in the prescribed form in the prescribed manner before
the prescribed authority along with proof of deposit of registration fee, for
continuation or grant of voluntary registration certificate.
(3) Subject
to provisions under sub‑sections (1) and (2), every dealer who is liable
to pay tax in accordance with any provision under section 3 and every dealer
from whom any amount of tax has been deducted under the provisions of Section
34, shall present an application in the prescribed manner and in the prescribed
form before the prescribed authority within a period of thirty days from the
date on which he becomes liable for payment of tax for grant of registration
certificate after depositing rupees one thousand as registration fee in the
prescribed manner:
PROVIDED that a dealer who would have become liable to
pay tax on any date during the assessment year preceding the first assessment
year under this Act, had this Act been inforce in
such preceding assessment year, shall present an application in the prescribed
manner before the prescribed authority after depositing in the prescribed
manner rupees one thousand as registration fee within thirty days from the date
of the commencement of this Act:
PROVIDED FURTHER that a dealer who had become liable
for obtaining registration certificate under any provision of the U.P. Trade
Tax Act, 1948, and is liable to pay tax on the date of commencement of this Act
under this Act, if such dealer has not applied for issue of registration under the
U.P. Trade Tax Act, 1948 without prejudice to any other liability under that
Act, shall, for grant of registration, present an application in the prescribed
form and in prescribed manner before the prescribed authority within thirty
days from the date of commencement of this Act after depositing rupees one
thousand as registration fee.
Explanation: In computation of period of thirty days
for the purpose of this section the date on which a dealer becomes liable for
payment of tax shall be included.
(4) Dealer
who intends to manufacture any taxable goods for sale or who intends to carry
on business of sale or purchase of taxable goods or who is carrying on business
of sale or purchase of goods but otherwise is not liable to obtain
registration, if he so desires, may present an application in the prescribed
form and in prescribed manner for grant of voluntary registration certificate
at any time on or after the date of commencement of this Act after depositing
in the prescribed manner rupees one thousand as registration fee. Such
registration certificate shall be valid with effect from the date on which
registration certificate is granted.
(5) Dealer
who holds a registration certificate referred to in sub‑section (1) above
shall present the certificate of registration before the prescribed authority
along with an application for grant of fresh registration certificate within
sixty days of the commencement of this Act. Any dealer referred to in sub‑section
(2) shall present an application along with registration certificate to the
prescribed authority within thirty days from the date on which registration
certificate is granted to him under the provisions of the U.P. Trade Tax Act,
1948.
(6) Subject
to provision under sub‑section (7) if the authority prescribed for
granting registration certificate is satisfied that the dealer is a bona fide
person with bona fide intention of carrying on business, it may, after making
such inquiry as it may deem necessary, cause the dealer to be registered:
PROVIDED that where any security for grant of
registration certificate has been demanded from the dealer, registration shall
be granted after the dealer has furnished such security to the satisfaction of
the prescribed authority.
(7) If
application for registration is incorrect or incomplete or is not in order or
the fee or penalty has not been paid or the security has not been furnished or
if the prescribed authority is not satisfied that dealer is a bonafide person with bonafide
intention of carrying on business, it may after giving a reasonable opportunity
being heard to the applicant reject the application by an order in writing.
(8) The
registration certificate shall, subject to the provisions of this Act and the
rules made thereunder, take effect from the date on
which the dealer becomes liable to obtain registration in case he applies for
grant of registration certificate within the prescribed time and, in any other
case, from the date on which he presents application for grant of registration
certificate.
(9) Subject
to provision under sub‑section (10), registration certificate granted
under this section shall remain in force till the date of discontinuance of
business.
(10) When
any business in respect of which a certificate of registration has been granted
to a dealer on an application made, has been discontinued, or-
(a) in
case of a dealer referred to in clause () of sub‑section ( ) of section
3, the aggregate of turnover of sales and, or, as the case may be, of purchases
has remained below the prescribed minimum limit of taxable turnover for the
last three consecutive years; or
(b) an
incorporated body is closed down or if it otherwise ceases to exist; or
(c) the
owner of an ownership business dies leaving no successor to carry on business; or
(d) in
case of a firm or association of persons if it is dissolved or
(e) a
person or dealer is registered by mistake, or
(f) a
dealer fails to furnish return and pay tax and interest according to such
return or returns within the time extended, or
(g) a
person or a dealer to whom registration was granted is found guilty of misusing
such certificate of registration in any manner; or
(h) a
dealer has failed to furnish security or, as the case may be, additional
security demanded from him in the interest of revenue; or
(i) a dealer has obstructed any officer or
authority empowered to make survey or inspection of business premises or
account books or goods belonging to dealer or suspected to belong to the
dealer; or
(j) the
dealer has transferred any prescribed form of declaration or certificate
obtained by him to any other person or dealer except for lawful purposes; or
(k) the
person to whom registration was granted has permitted some other person to
carry on business in the name of the dealer; or
(m) the
dealer has issued any tax invoice to any person without making sales of goods
shown in the tax invoice to such person, the prescribed authority after giving
reasonable opportunity of being heard to the dealer shall cancel the
registration of such dealer with effect from the date of order:
PROVIDED that where it is found by the registering
authority that:-
(i) the person to whom registration was
granted has permitted some other person to carry on business in the name of the
dealer; or
(ii) the
dealer has issued any tax invoice to any person without making sales of goods
shown in the tax invoice to such person,
(iii) the
turnover of sales and, or, as the case may be, of purchases has remained below
the prescribed minimum limit of taxable turnover for the last three consecutive
years the registering authority may cancel the registration with effect from a
date prior to the date of order.
Explanation: The dissolution of a firm or association
of persons or partition of joint Hindu family or transfer by a dealer of his
business shall be deemed to be cessation of business within the meaning of this
sub‑section.
(11) The
prescribed authority empowered to grant a certificate of registration to a
dealer may, after considering any information furnished under this Act or
otherwise received and after making such inquiry as it may deem fit, amend from
time to time any certificate of registration; and such amendment of the
certificate of registration shall take effect:
(a) in
the case of change in the name, ownership or place of business, or opening of a
new place of business, from the date of the event necessitating the amendment
whether or not information in that behalf is furnished within the time
prescribed under section 18;
(b) in
case of any addition or modification in the description of any goods or class
of goods in the certificate of registration, from the date of event
necessitating the amendment if information in that behalf is furnished within
the time prescribed under section 18 and in any other case, from the date of
receipt of request for such addition or modification by the Assessing
Authority;
(c) in
case of deletion of any goods or class of goods, from the date of order of
deletion:
PROVIDED that where in consequence of a change in the
ownership of a business, the liability to pay tax of a dealer ceases, the
amendment of the certificate of registration shall take effect from the date on
which information in respect of such change is furnished under section 18.
Explanation: (1) Any amendment of a certificate of
registration under this sub‑section shall be without prejudice to any
liability for tax or penalty imposable, or for any prosecution for an offence
under this Act.
(12) For the
removal of doubts, it is hereby declared that where a registered dealer-
(a) affects
a change in the name of his business; or
(b) is
a firm and there is change in the constitution of the firm without dissolution
thereof; or
(c)
is a trustee of a trust
and there is a change in the trustees thereof; or
(d) is a
guardian of the ward and there is a change in the guardian; or
(e) is
a "joint Hindu family" and the business of such family is converted
into a partnership business with all or any of the coparceners as partners
thereof then merely by reason of any of the circumstances aforesaid, it shall
not be necessary for the dealer or the firm the constitution whereof is
changed, or the new trustees, or the new guardian or, as the case may be, the
partners of such partnership business, to apply for a fresh certificate of
registration, and on information being furnished in the manner required by
section 18 the certificate of registration shall be amended.
(13) The
registration certificate granted under this section shall not be cancelled or
amended by prescribed authority on its own motion without the dealer being
given reasonable opportunity of being heard.
(14) Where
a dealer presents an application for registration after expiry of time
prescribed under sub‑section (2) or (3) if he deposits late fee at a rate
of rupees one hundred per month or part of it, for the period of the delay
along with the registration fee prescribed under sub‑section (2) or sub‑section
(3), registration certificate may be granted with affect from the date of
presentation of application form.
18. Information
to be furnished regarding change of business
If any dealer to whom the provisions of section 17
apply-
(a) transfers
his business or any part thereof by sale, lease, leave, license, hire or in any
other manner whatsoever, or otherwise disposes of his business or any part
thereof, or
(b) acquires
any business, whether by purchase or otherwise; or
(c) effects
or comes to know of any other change in the ownership or constitution of his
business; or
(d) discontinues
his business or changes his place of business or warehouse or opens a new place
of business or warehouse; or
(e) changes
the name, style or nature of his business or effects any change in the class or
description of goods in which he carries on his business, as specified in his
certificate of registration; or
(f) enters
into partnership or other association in regard to his business; or
(g) starts
a new business or joins another business either singly or jointly with other
persons; or
(h) in
the case of company incorporated under a statute effects any change in the
constitution of Board of Directors; or
(i) effects any change in the particulars
furnished in application for grant of registration certificate under section
17, shall within thirty days of the occurring of any of the events aforesaid,
inform the prescribed authority in the form and manner as may be prescribed.
19. Security
in the interest of revenue
(1) Where
it appears necessary to the assessing and/or prescribed authority so to do-
(a) for
the proper realisation of any tax, penalty or other
sums due or payable under this Act; or
(b) for
the proper custody or use of forms prescribed under this Act or the rules
framed thereunder; or
(c) as
a condition for the grant or as the case may be, the continuance in effect or
registration certificate, it may, by an order in writing and for reasons to be
recorded therein, direct, before the grant or as the case may be, at any time
while such certificate is inforce, that the dealer or
the person concerned shall furnish, in the prescribed manner and within such
time as may be specified in the order such security or if dealer or person
concerned has already furnished such security or additional security of any
nature, as may be specified for all or any of the aforesaid purposes.
(2) No
dealer or the person concerned shall be required to furnish any security or
additional security under sub‑section (1) by the Assessing and/or
Prescribed Authority unless he has been given an opportunity of being heard,
and the amount of such security or additional security that may be required to
be furnished by any dealer shall also in no case exceed the tax payable, in
accordance with the estimate of such Authority on the turnover of the dealer
for the assessment year in which such security is required to be furnished.
(3) Notwithstanding anything contained in sub‑section
(1) or sub‑section (2), the Commissioner may, in respect of any goods
notified by the Government in this behalf, by a general order in
writing, direct that a cash security of such amount as may be specified in such
order shall be required to be furnished by a dealer or person requiring any of
the forms prescribed under this Act.
(4) Where
the security furnished by a dealer or person concerned under sub‑section
(1) is in the form of a surety bond and any surety dies or becomes insolvent,
the dealer or the person concerned shall, within thirty days of the occurrence
of any of the aforesaid events, inform the authority granting the certificate
under section 17 or issuing the forms referred to in clauses (b) of sub‑section
(1), as the case may be, and shall within sixty days of such occurrence furnish
a fresh surety bond or furnish in the prescribed manner other security for the
amount of the bond.
(5) The
assessing authority may, by order and for good and sufficient cause, forfeit
the whole or any part of the security furnished by a dealer or the person
concerned-
(a) for
realising any amount of tax, penalty or other amount
payable by the dealer or the person concerned; or
(b) if
any dealer or person concerned is found to have misused any of the forms
referred to in sub‑section (1) or to have failed to keep them in proper
custody:
PROVIDED that no order shall be passed under this sub‑section
without giving the dealer or the person concerned an opportunity of being
heard.
(6) Where
by reason of an order under sub‑section (5) the security furnished by any
dealer or the person concerned is rendered insufficient, he shall make up the
deficiency in such manner and within such time as may be directed by the
assessing authority.
(7) The
Assessing or the Prescribed Authority, as the case may be, may-
(a) refuse
to grant; or
(b) suspend
any such certificate already issued; or
(c) refuse
to issue any of the forms referred to in sub‑ section (1) or sub‑section
(3); to any dealer or the person concerned, who has failed to comply with an
order under sub‑section (1) or sub‑section (3) or with the
provisions of sub‑section (4) or sub‑section (6), until the dealer
or the person concerned has complied with such order or such provisions, as the
case may be:
PROVIDED that no order under clause (a) or clause (b)
above, shall be passed without giving the dealer or the person concerned an
opportunity of being heard.
(8) The
Assessing Authority may, on application by the dealer or the person concerned,
order the return of the surety bond or refund any amount or part thereof
deposited by way of security by the dealer or the person concerned under this
section or under section 59 if it is not required for the purpose of this Act.
(9) An
appeal under section 57 shall lie against an order passed under this section.
(10) Any
person aggrieved by an order of the appellate authority may, within ninety days
of the service of the order on him but after furnishing the security, file an
appeal under section 59.
(11) The
provisions of this section shall mutatis mutandis, apply in relation to
security required to be furnished under the order of any authority under this
Act or tile Court.
20. Quoting
of registration number etc.
(1) Every
registered dealer shall quote registration number allotted to him by the
prescribed authority on all correspondences made, or statements and returns
submitted, or information furnished and documents issued by him. He shall also
mention invariably his registration number on each copy of treasury challan while depositing amount of tax, or fee or any other
dues under this Act.
(2) Selling
dealer, if required by the purchaser of such goods shall show him the
registration certificate granted to him under the provisions of this Act.
(3) While
making purchases of any goods every purchasing dealer who is a registered
dealer under this Act shall give name, address and his registration number to
the selling dealer and the selling dealer shall mention the name, address and
such registration number of purchasing dealer on tax invoice or retail invoice
or sale invoice or bill or cash memo or transfer memo or challan
or transfer invoice, as the case may be.
(4) Every
registered dealer under this Act shall present registration certificate granted
to him before an officer or official of the Commercial Tax Department of tile
State Government whenever required by such officer or official in connection
with any proceedings under this Act.
(5) Every
dealer who possesses Permanent Account Number allotted by the Income Tax
Department shall mention it on all applications made, returns submitted by him
before any authority under this Act.
21. Accounts
to be maintained by dealers
(1) Subject
to tile other provisions under this section, every dealer liable to pay tax
including a dealer exempted from tax on payment of fee under any provision of
the Act, shall keep and maintain a true and correct account showing the value
of the goods sold and bought by him, and in case the accounts maintained in the
ordinary course do not show the same in an intelligible form, he shall maintain
true and correct account in Such form, as may be prescribed in this behalf:
PROVIDED that this section shall not apply to such
dealers as are not liable to taxation under this Act.
(2) A
manufacturer liable to pay tax under the Act shall in addition to the accounts
referred to in other sub‑sections of this section, maintain stock books
in respect of raw materials as well as the products obtained at every stage of
production:
PROVIDED that in the case of any class of
manufacturers, the aggregate of whose turnover, as referred to in clause (iii)
of sub‑section (2) of section 3, in ail assessment year does not exceed
ten lakh rupees, the Commissioner, and in any other
case the State Government, may relax the requirements of this sub‑section
subject to such conditions and restrictions as he or it may deem fit to specify.
(3) The
accounts, documents and the stock books required to be maintained under this
section shall be preserved by the dealer or, as the case may be, by the
manufacturer for such period as may be prescribed.
(4) In
respect of purchase of goods from a person other than a registered dealer, in
cases in which selling dealer does not issue sale invoice or bill or cash memo,
the purchasing dealer in respect of such purchases of goods shall issue to the
seller a purchase invoice in such manner containing such particulars as may be
prescribed and shall obtain signature or thumb impression of person making such
sale.
(5) (i) Every
registered dealer while making sales of any goods except Aviation Turbine Fuel,
Diesel, Natural Gas and Petrol, of any amount to another registered dealer
shall issue to the purchaser of goods a Tax Invoice in prescribed manner
containing such particulars as may be prescribed, in legible form. Amount of
tax charged on sales of goods shall be shown separately:
PROVIDED that where purchasing dealer is liable to
deduct amount of tax payable by the selling dealer as tax under provisions of
section 34, selling dealer instead of issuing a Tax invoice shall issue a sale
invoice or bill or cash memo in the prescribed form containing such particulars
as may be prescribed and will subtract the amount of tax separately from the
amount receivable from the purchaser.
(ii) Subject
to provision under clause (i) every dealer liable to
pay tax while making sale of any goods except Aviation Turbine Fuel, Diesel,
Natural Gas and Petrol, to any person where sale price of single sale exceeds
such amount as may be prescribed, shall issue in the prescribed manner to the
purchaser a retail sale invoice or bill or cash‑memo containing such
particulars as may be prescribed, in legible form. Such dealer shall not charge
separately any amount as tax in respect of such sale of goods:
PROVIDED that where a purchaser demands or if any
other law requires, the dealer shall issue a retail sale invoice or bill or
cash memo containing such particulars as may be prescribed, to the purchaser of
goods even if sale price of single sale does not exceed amount so prescribed
but he shall not charge amount of tax separately on such retail sale invoice or
bill or cash memo.
(iii) Every
registered dealer liable to pay tax on sales of Aviation Turbine Fuel, Diesel,
Natural Gas or Petrol while making sales to any person other than a dealer,
where sale price of single sale exceeds such amount as may be prescribed, shall
issue in the prescribed manner to the purchaser a sale invoice or bill or cash‑memo
containing such particulars as may be prescribed, in legible form. Such dealer
may charge amount of tax payable by him separately on such sale invoice or bill
or cash memo:
PROVIDED that where a purchaser demands or if any
other law requires, the dealer shall issue a sale invoice or bill or cash memo
to the purchaser of goods even if sale price of single sale does not exceed
amount so prescribed and may charge amount of tax payable separately on such
sale invoice or bill or cash memo.
(iv) Every
registered dealer liable to pay tax on sales of Aviation Turbine Fuel, Diesel,
Natural Gas or Petrol while making sales to a dealer of any amount, shall issue
in the prescribed manner to the purchaser a sale invoice or bill or cash‑memo
containing such particulars as may be prescribed, in legible form. Such dealer
may charge amount of tax payable by him separately on such sale invoice or bill
or cash memo.
(v) Every
dealer who is not liable to pay tax on any sales of Aviation Turbine Fuel,
Diesel, Natural Gas or petrol while making sale of such goods to any dealer
shall issue in the prescribed manner to the purchaser a sale invoice or bill or
cash memo containing such particulars as may be prescribed, in legible form,
but he shall not charge any amount from the purchaser in the name or colour of tax.
(vi) Every
dealer who is not liable to pay tax on any sale of Aviation Turbine Fuel,
Diesel, Natural Gas or petrol while making sale of such goods to any person
other than a dealer, where sale price of single sale exceeds such amount as may
be prescribed, shall issue in the prescribed manner to the purchaser a sale
invoice or bill or cash‑memo containing such particulars as may be
prescribed, in legible form. Such dealer shall not charge any amount in the
name or colour of tax on such sale invoice or bill or
cash memo:
PROVIDED that where a purchaser demands or if any
other law requires, the dealer shall issue a sale invoice or bill or cash memo
to the purchaser of goods even if sale price of single sale does not exceed
amount so prescribed but shall not charge any amount in the name or colour of tax on such sale invoice or bill or cash memo.
(6) Every
dealer while making purchases of any goods from another dealer (whether
registered or not) shall give his name, address and registration number, if
any, to the selling dealer.
(7) Every
registered dealer who consigns betel nuts, catechu, edible oils including
refined oils, vanaspati ghee and other vegetable oils
for use in manufacturing of edible oils, iron‑steel, food grains, oil
seeds, mentha oil, menthol, pan‑masala, whether tobacco mixed or otherwise and such other
goods or class of goods, as the State Government may, by notification in the
Gazette, specify, of such quantity or measure or value as may be notified, to a
dealer whether by reason of sale or otherwise, shall issue a transport memo in
prescribed manner and , in prescribed form obtained from the Assessing
Authority having jurisdiction over the area in which principal place of such
dealer is situated. Such transport‑memo completed in all respects shall
accompany the goods during journey of goods and shall be delivered to the
consignee dealer at the time of delivery of goods and where goods are handed
over to the consignee dealer at the business place of the selling dealer such
transport memo completed in all respects shall be delivered to the receiver of
such goods. Counter foil of transport memo shall be retained by the consignor
dealer as part of account books.
(8) Except
as provided in sub‑section (7) above every registered dealer and every
dealer liable to pay tax while consigning any taxable goods to another dealer
whether as a result of sale or otherwise, shall issue in the prescribed manner
a legible challan or transfer invoice containing
prescribed particulars, to the purchaser or consignee person of goods. Such challan or transfer invoice shall be prepared in duplicate
and original copy of such challan or transfer invoice
shall accompany the goods during the journey of goods. Duplicate carbon copy of
such challan or transfer invoice shall be preserved
by the dealer as part of account books.
(9) Person
transporting the goods for delivery to the consignee shall fill in the
particulars in the relevant columns provided on transfer memo, sale invoice or
bill or cash memo, or transfer invoice or challan, as
the case may be. Person transporting goods shall deliver such documents to the
consignee dealer along with goods.
(10) Consignee
dealer of goods shall preserve documents referred to in sub‑section (7)
and sub‑section (8) above for the period prescribed under sub‑section
(3) above and shall not transfer any such documents to any other person.
(11) Every
dealer who receives any certificate or any form of declaration prescribed under
this Act or rules made or notifications issued hereunder, from the assessing
authority, shall use them in the prescribed manner and shall keep an account of
all such used or unused certificates or forms of declaration in the prescribed
manner.
(12) No
dealer shall transfer to any person and no person shall receive from any person
any certificate or any form of declaration prescribed under this Act or rules
made or notification issued hereunder except according to the provisions of
this Act and rules made or notifications issued thereunder.
(13) Any
dealer who receives any prescribed form of declaration including duplicate copy
of declaration form for import of goods and documents referred to in sub‑section
(4) to sub‑section (8), shall preserve them for a period prescribed under
sub‑section (3) of this section.
(14) Where
a dealer purchases or receives or disposes of manufactured goods in more than
one of the following ways:-
(i) makes sale of taxable goods inside the State; or
(ii) dispatches
any taxable goods to other dealers for sale inside the State; or
(iii) makes
sale of taxable goods in the course of inter‑State trade or commerce; or
(iv) makes
sale in the course of export or import; or dispatches any taxable goods outside
the State otherwise than by way of sale, shall keep separate account of sales
or dispatches and also purchases and receipts of goods for such purposes
separately as far as possible.
(15) Any
dealer who claims input tax credit under section 14 shall maintain a register
in respect of computation of input tax credit tax period wise.
(16) A
dealer who maintains or keeps books, accounts in a computer, shall also
maintain day to day print out of a] I such books, accounts and documents. He
shall also prepare floppies of such books or accounts or documents and shall
maintain them as part of accounts.
(17) Every
dealer liable to pay tax shall prepare an inventory of goods held in stock
whether purchased from inside the State or imported from outside the State,
along with their purchase value, on following dates:-
(i) Goods held in opening stocks on the
date on which the dealer becomes liable to pay tax;
(ii) Goods
held in closing stocks on the last date of each financial year;
(iii) Goods
held in opening stock on the first date of the assessment year in which the
dealer applies for issue of orders under sub‑section (12) of section 3;
(iv) Goods
held in stocks at the time of discontinuance of business:
PROVIDED that if the dealer manufactures any goods and
holds any manufactured or semi-manufactured goods in stocks, he shall also
prepare inventory of goods and record estimated purchase value of goods present
in manufactured or semi‑manufactured goods as constituents and estimated
purchase value of goods used in manufacture of such goods as fuel or consumable
stores or lubricants or packing materials.
(18) Where
a tax invoice has been issued and the amount shown as tax charged in the tax
invoice exceeds the tax payable under this Act in respect of that sale the
registered dealer making the sale, if refunds the excess amount realised as tax or allows credit of such amount to the
purchaser in any other manner, shall provide the purchaser with a credit note
containing the requisite particulars as may be prescribed.
(19) Where
the tax invoice has been issued and the tax payable under this Act in respect
of the sales exceeds the amount of tax charged in that tax invoice the
registered dealer making the sale, if realises from
the purchaser the amount of tax that has been charged less on a tax invoice or
receives credit of such amount in any other manner, shall provide the purchaser
with a debit note containing the requisite particulars as may be prescribed.
(20) In
case of goods returned or rejected by the purchaser, the purchaser shall
account for the amount of tax invoice in his books of account, shall issue a
debit note of the amount to the seller and receive a credit note issued by the
seller a credit note shall be issued by the selling dealer to the purchaser and
a debit note will be issued by the purchaser to the selling dealer containing
the particulars as may be prescribed.
(21) If
the purchasing dealer does not produce a debit note issued by the selling
dealer, of the amount that was charged less on the tax invoice, he shall not be
entitled to claim input tax credit in respect of such amount.
22. Realisation of tax
from purchasers by sellers
(1) Except
as provided in sub‑section (5) of section 21, no dealer shall realise any amount in any manner in the name and colour of tax under this Act in respect of any sale of any
goods.
(2) A
registered dealer who is entitled to realise amount
of tax separately on Tax invoice or sale invoice or bill or cash memo in
accordance with provisions under sub‑section (5) of section 21 shall not realise any amount in excess of the amount of tax payable
by him under the provisions of this Act.
(3) Except
as provided in section 34, no dealer whether or not liable to pay tax on any
purchase of any goods under this Act, shall deduct any
amount in the name of tax in any manner from the seller of such goods. If
purchaser of goods deducts any amount as purchase tax form the seller of goods
without any other liability under this Act, such amount shall be deemed to be
the part of turnover of purchases.
SUBMISSION OF RETURNS, ASSESSMENT OF TAX, PAYMENT,
RECOVERY AND COLLECTION OF TAX
23. Submmission of
returns
(1) Every
dealer who is liable to pay tax under this Act, and every dealer from whom tax
has been deducted at source under section 34, shall submit such return or
returns of his turnover or of amounts deducted, as the case may be, for such
tax periods as may be prescribed within such time, in such form and verified in
such manner as may be prescribed, but the assessing authority may in its
discretion, for reasons to be recorded, extend the date for submission of the
return by any person or class of persons:
PROVIDED that every dealer liable to pay tax including
a dealer who claims input tax credit under section 14 of the Act, shall also
submit along with return a list of purchases of goods from registered dealers
and list of sales of goods to registered dealers in the prescribed manner
containing such particulars as may be prescribed.
(2) Before
submitting the return under sub‑section (1), the dealer shall deposit, in
such manner as may be prescribed the amount of net tax payable shown in the
return along with any such amount which has been wrongly realized in excess of
amount of tax due under the Act from purchasers of goods during the tax period
of return.
(3) Every
person or dealer to whom provision of section 34 applies, shall submit a
statement of details of dealers from whom deductions have been made, with their
complete names and addresses along with details of amount of payments made and
amounts of tax deducted during the tax period within the time prescribed for
depositing the amount of tax deducted, and shall deposit the amount of tax
deducted in the prescribed manner and within the time prescribed under sub‑section
(6) of section 34.
(4) Where
as a consequence of the date for the submission of return being extended under
sub‑section (1) on the application of any person, the deposit of tax
under sub‑section (2) is deferred, there shall be payable simple interest
at the rate of eighteen percent per annum on such deposit from the date
immediately following the last date prescribed for the submission of the return
till the date of deposit of such amount.
(5) If
any dealer discovers any omission or other error in any return submitted by
him, he may, at any time before the time prescribed for submitting the next
return, submit a revised return. If the revised return shows a greater amount
of tax to be due than was shown in the original return, the dealer shall also
deposit separately the difference of tax due and the interest payable under sub‑section
(4) as if the time for submitting the original return had been extended on the
application of the dealer to the date of submission of the revised return, if,
however, the revised return shows lesser amount of tax to be due than was shown
in the original return the dealer may adjust the excess amount towards the tax
due for the subsequent periods.
(6) If
goods sold or purchased by a dealer are returned within six months of the date
of sale or purchase, and assessment for the year to which such sale or purchase
relates is as yet to be made, he may within thirty days of the expiry of the
month in which such goods are returned, submit for that purpose only a revised
return for the period during which such sale or purchase was made.
(7) Every
dealer liable to pay tax under this Act, including a dealer who has carried on
business during part of an assessment year, shall submit annual return of
turnover of purchases and sales in the prescribed form, in the prescribed
manner and within the prescribed time along with such other details and
documents as may be prescribed.
(8) Every
dealer or any other person to whom provisions of section 34 apply, shall submit
for the assessment year such details as may be prescribed in the prescribed
form and within the prescribed time.
24. Assessment
of tax for a tax period
Where in respect of any tax period of an assessment
year:-
(a) no
tax return has been submitted by a dealer within the time prescribed or within
the time allowed by the assessing authority, if extended, under sub‑section
(1) of section 23 or if return has been submitted but amount of tax payable has
not been deposited; or
(b) preliminary
examination of return by the assessing authority reveals that computations
shown in the return are wrong or amount of input tax credit claimed or tax
payable shown is incorrect; or
(c) on
the basis of material available on records with the assessing authority, it is
satisfied that the turnover of sales or purchases or both, as the case may be,
disclosed by the dealer is not worthy of credence; it may, after making such
inquiry as it may deem fit and after giving a reasonable opportunity of being
heard to the dealer, determine to the best of his judgment the turnover and the
amount of tax payable and make an order of assessment of turnover and tax for
such tax period. The dealer shall within thirty days of service of such
assessment order and notice of demand on him, deposit the amount of tax
assessed in excess of the amount of tax already deposited by him:
PROVIDED that no order of assessment for any tax
period of an assessment year shall be made after the dealer has submitted
annual return for such assessment year and where annual return has not been
submitted by the dealer, assessment shall not be made after expiry of the
period prescribed or time allowed, if extended, for submission of annual return
for such assessment year.
25. Assessment
for an assessment year
(1) In
respect of every dealer liable to pay tax, subject to other provisions, for
each assessment year there shall be an assessment of-
(i) turnover of purchases and turnover of
sales of taxable goods made by the dealer during the assessment year whether
such purchases or sales had been made directly by the dealer or through his
branch, depot or agent;
(ii) tax
payable by the dealer for such assessment year; and
(iii) admissible
amount of input tax credit and amount of reverse input tax credit if any:
PROVIDED that where the dealer has carried on business
during a part of the assessment year, such assessment shall be for such part of
the assessment year. Every dealer liable to pay tax, for each assessment year,
shall furnish to the assessing authority an annual return of self-assessment in
the prescribed manner in the prescribed form within the prescribed time:
PROVIDED that on the application of the dealer, in
appropriate cases the assessing authority may extend the period for furnishing
annual return of self-assessment but such extended period shall not exceed
ninety days beyond the time prescribed for furnishing such return.
(3) Subject
to provisions under sub‑section (4), every dealer who has furnished
annual return referred to in sub‑section (2) shall be deemed to have been
self assessed on the turnover of purchases and turnover of sales disclosed in
the annual return and to an amount of tax payable admitted in such return.
Return itself shall be deemed to be an assessment and any fact disclosed or any
figure mentioned in the return shall be deemed part of such assessment order.
For all purposes under the Act, rules made or notifications issued thereunder, last date of the assessment year subsequent to
the assessment year in which the date prescribed for submission of annual
return falls, shall be deemed to be the date of assessment order and annual
return shall be deemed to be an assessment order:
PROVIDED that if the assessing authority finds any
computation error and amount of tax admitted by the dealer is to be enhanced,
the dealer shall be required to present revised annual return of turnover and
tax within the time allowed, along with proof of deposit of tax and interest.
In the circumstances revised return shall be deemed to an assessment order.
(4) In
each assessment year, in respect of twenty percent of dealers out of total
number of dealers liable to pay tax, as may be specified or selected by the
Commissioner or by any other officer not below the rank of an Additional
Commissioner, as may be authorized by the Commissioner and dealers failing in
any of the categories mentioned below, assessment shall be made by the
assessing authority after detailed scrutiny and examination of books, accounts
or documents kept by the dealer in relation to business and returns, if any,
submitted by the dealer and after making such enquiry as it may deem fit:-
(i) Dealer
who has not submitted annual return of turnover and tax within the
prescribed time or within such further time, as may be extended or the dealer
has not submitted the revised return as required under proviso to sub‑section
(3) within the time allowed; or
(ii) Dealer
in whose case, preliminary examination of annual return by the assessing
authority reveals that computations shown in annual return are wrong or amount
of input tax credit claimed or tax payable shown is incorrect; or
(iii) Dealer
by whom no return for any tax period has been filed or returns have not been
filed for some of the tax periods of the assessment year; or.
(iv) Dealer
in whose case assessing authority has passed provisional assessment order under
section 24 in respect of one or more tax periods to the best of his judgment;
or
(v) Dealer
in whose case on the basis of material available on records if the assessing
authority is satisfied that the turnover of sales or of purchases or of both,
as the case may be, disclosed by the dealer in annual return of turnover and
amount of tax payable shown is not worthy of credence and, or tax shown payable
in the return has not been deposited by the dealer, or amount of input tax
credit claimed is wrong or amount of tax payable shown is incorrect; or
(vi) Dealer
about whom there is presumption that he has made any sales or purchases of any
taxable goods under this Act; or
(vii) Dealer
who has prevented or obstructed an officer empowered to make inspection, search
or seizure under the provisions of section 44 or section 46 of the Act; or
(viii) Except
a dealer who has opted any scheme of payment of lump sum in lieu of tax due on
turnover of sales or purchases, a dealer in whose case amount of tax has been
deducted at source under section 34; or
(ix) Dealer
in whose case assessment is to be made for such first assessment year in which
he has carried on business during the whole assessment year; or
(x) Dealer
who has commenced business after the first day of the assessment year for which
assessment is to be made; or
(xi) Person
who has obtained authorization for transit of goods through the State; or
(xii) Such
other dealers or class of dealers as may be specified by the commissioner.
(5) In
case of a dealer in which regular assessment is to be made, the assessing
authority, for the purpose of examination of accounts, return or returns
submitted by the dealer and for making such enquiry as it may deem fit, before
the expiry of the period prescribed for making assessment, shall serve on the
dealer a notice requiring him, on a date to be specified therein, to produce or
cause to be produced there, any books, accounts or documents kept by him in
relation to his business and any evidence on which the dealer may rely in
support of the contents of returns of various tax periods and annual return
submitted by him. If the dealer has not submitted the annual return he shall
also be required to submit such return on the specified date. After making
audit and examination of returns, books, accounts and documents and after making
such enquiry, as it may deem fit-
(i) if the assessing authority is satisfied
that turnover of sales and, or of purchases disclosed and amount of tax shown
payable by the dealer in annual return is correct and worthy of credence, it
shall assess the dealer to tax in accordance with the provisions of the Act, by
an order in writing, on the turnover admitted by the dealer;
(ii) where
assessing authority is of the opinion that the turnover disclosed by the dealer
in the annual return or the amount of tax shown payable does not appear to be
correct, it shall issue notice to the dealer stating reasons therefore to show
cause why turnover disclosed and, or amount of tax shown payable by the dealer
should not be rejected and why he should not be assessed to tax in accordance
with provisions of the Act, on the turnover to be determined to the best of its
judgment. If after considering the reply, if submitted by the dealer, and after
giving reasonable opportunity of being heard to the dealer, assessing authority
is satisfied that the turnover disclosed by the dealer is not worthy of
credence and, or rate of tax admitted by the dealer is not correct, it shall
determine the turnover to the best of its judgment and assess the dealer to tax
according to provisions of the Act by an order in writing; and
(iii) where
show cause notice under clause (ii) has been issued to the dealer and after
considering the reply submitted by the dealer, if assessing authority is
satisfied that the turnover disclosed by the dealer and, or the rate of tax
admitted is correct, it shall assess the dealer, by an order in writing, to tax
according to the provisions of the Act, on the turnover admitted by the dealer:
PROVIDED that the show cause notice referred to in sub‑clause
(ii) shall contain all such reasons on which the assessing authority has formed
its opinion about incorrectness of the turnover and, or rate of tax:
PROVIDED FURTHER that where opportunity for production
of books, accounts and documents has been afforded to the dealer but for any
reason he has not availed such opportunity and thereby the assessing authority
could not examine the correctness and propriety of particulars shown in the
returns, it shall not be necessary to issue show cause notice to such dealer
before making assessment order to the best of its judgment.
(6) Copy
of assessment order passed by the assessing authority under sub‑section
(3) along with demand notice of the amount of tax, if any, to be deposited by
the dealer, shall be served on the dealer.
(7) Dealer
shall deposit the tax assessed in excess of tax deposited by him for the
assessment year within a period of thirty days after the date of service of the
final assessment order and demand notice. If the amount of tax deposited by the
dealer is found in excess of tax assessed, the same shall be refunded according
to the provisions of the Act.
(8) Assessing Authority shall not be precluded
from making final assessment order under this section on the ground of passing
of any provisional assessment order in respect of any tax period under
Section 24. Also on passing of final assessment order, assessment orders
passed, under Section 24 shall stand merged in the final assessment order
passed under this section.
(9) Notwithstanding
anything contrary contained in this Act or in any other Act for the time being
in force, in cases of following dealers or class of dealers in respect of
different transactions more than one assessment maybe made for the same
assessment year:
(i) Dealers or persons who have obtained
more than one authorisation for transit of goods
through the State, in respect of each authorisation
for transit of goods through the State separate assessment order may be passed;
(ii) casual
dealers who have not obtained registration certificate and have no fixed place
of business; by different assessing authorities in whose jurisdiction they have
carried on business by each such authority in respect of business carried on in
its jurisdiction;
(iii) dealers
other than registered dealers who import taxable goods on each occasion they
import goods separate assessment may be made by the officer empowered to seize
such goods;
(iv) dealers
other than registered dealers who either execute works contracts or affect
transfer of right to use any goods for any purpose in jurisdictions of more
than one assessing authority and have no fixed place of business, by each such
assessing authority in respect of business done in its jurisdiction: PROVIDED
that more than one assessment shall not be made in respect of the same turnover
of sales of goods or turnover of purchases of goods.
26. Composition
of tax liability
(1) Notwithstanding
anything contained in this Act but subject to direction of the State Government
and subject to provision under sub‑section (2), the assessing authority
may accept a lump sum as composition money in lieu of-
(a) amount
of tax payable on the turnover of sales of such goods or class of goods and
during such period as may be agreed upon, by dealers:-
(i) who carry on exclusive retail business
of purchase and of sale of goods within the State only;
(ii) who
do not manufacture any goods;
(iii) who
do not sale any goods in the capacity of importer; and
(iv) whose
neither turnover of sales nor turnover of purchases for the assessment year preceding
the assessment year for which scheme is applicable has exceeded rupees twenty‑
five lakh and whose turnover as aforesaid is not
likely to exceed rupees twenty‑five lakh for
the assessment year for which scheme is applicable and where the dealer has not
carried on business during the whole preceding assessment year, neither his
turnover of sales nor his turnover of purchases for the assessment year for
which scheme is applicable is likely to exceed rupees twenty‑five lakh.
(b) amount
of tax payable on the turnover of sales of self manufactured bricks, tile‑bricks,
brick‑bats, brick‑gitti or brick‑rori and surakhi during such
period as may be agreed upon.
(c) amount
of tax payable on the turnover of sales of goods by way of transfer of property
in goods (whether as goods or in some other form) involved in the execution of
any works contract of such nature as may be specified; amount of tax payable on
the turnover of sales of goods by dealers who make sales of goods by way of
transfer of right to use any goods (whether or not for a specified period) for
any purpose in respect of such goods and during such period as maybe specified;
(d) amount
of tax payable by casual dealers on the turnover of sales of such goods or
class of goods and during such period as may be specified;
(e) amount
of tax that may be payable by dealers other than registered dealers in respect
of turnover of any presumed purchases or sales of goods under this Act;
(f) amount
of tax that may be payable on estimated turnover of sales of goods being
imported for sale by persons other than registered dealers:
PROVIDED that where a composition money for a period
has been accepted in reference to any goods or class of goods, any change in
rate of tax which may come into force after the date of such agreement in
respect of such goods or class of goods, shall have the effect of making a
proportionate change in the lump sum in relation to that part of the period of
assessment during which the changed rate remains in force.
(2) Any
dealer who makes purchases of any goods or class of goods from persons other
than registered dealers from within the State for sale under any of the clauses
(a) to (e) except clause (b) or for use in manufacture of any goods mentioned
in clause (b) or for use in the execution of a works contract of the nature
specified under clause (d), notwithstanding anything contrary contained in the
Act, the State Government, may direct such dealer to pay amount of tax due in accordance
with the provisions of the Act on the turnover of such purchases of goods
during such period, in the manner and within the time as may be prescribed
under the scheme.
(3) Any
dealer who opts scheme of composition of tax liability, shall not be entitled
to claim input tax credit and if the dealer has already claimed input tax
credit in respect of any goods held by him in his opening stock on the date of
commencement of the period of composition, the dealer shall be liable to pay
such amount as reverse input tax credit within thirty days from the date of
commencement of such period.
(4) Where
the State Government is of the opinion that if it no is longer in the public
interest to continue any scheme of composition of tax liability, it may at any
time during the period, withdraw such scheme and in that case if a lump sum
amount of composition money has been fixed, a part of it in the proportion of
the part of the period during which the scheme remained in force shall be
payable by the dealer.
(5) Where
a composition money has been accepted in lieu of tax on turnover of sales and,
or, as the case may be, of purchases of any goods or class of goods, if the
dealer does not carry on any other business of sale and, or as the case may be,
of purchase of goods and does not obtain any form of declaration or certificate
either prescribed under this Act or under the Central Sales Tax Act, 1956, it
shall not be necessary for him to submit return / returns under section 23 of
the Act in respect of the period for which composition money has been accepted.
(6) Any
dealer who opts scheme of payment of tax under this section shall not realise any amount from the purchasers as tax or in the
name and colour of tax.
(7) any
dealer who opts any scheme of payment of tax under this section shall not be
entitled to claim input tax credit in respect of purchases of goods that are
covered under the scheme and no input tax credit shall be allowed by the
assessing authority. If claim of input tax credit has already been claimed or
allowed that shall stand reversed and amount
of such reverse input tax credit shall be realised
as tax along with amount of interest at a rate of twelve percent per annum from
the date it was claimed and till the date of payment of such amount.
(8) Any
dealer who makes purchases of any goods from a dealer, who has opted any scheme
of payment of tax under this section, shall not be entitled to claim input tax
credit in respect of goods purchased from such dealer.
(9) In
respect of a case falling under clause (a) of sub‑section (1), in case of
a dealer whose application is found in accordance with the provisions of this
section and direction issued by the State Government in that behalf but during
the period of the scheme, the turnover of sales or of purchases exceeds the
prescribed limit of turnover, such dealer shall be liable to pay tax in
accordance with the other relevant provisions under the Act, on such exceeded
turnover of sales and/or, as the case may be, of purchases and in such case the
moment the turnover exceeds the prescribed limit, it shall be presumed that
period of scheme has expired.
(10) Except
dealers falling in clause (f) or clause (g) of sub‑section (1), every
other dealer to whom this section applies, shall, without prejudice to any
other provisions under the Act, be liable to furnish following information to
the assessing authority:-
(i) Inventory of goods held in stock as
opening stock on the first day of the period for which scheme is applicable;
(ii) List
of purchases of all goods along with details of names, addresses and
registration numbers of dealers; the selling dealer, name, quantity and value
of goods;
(iii) Particulars
including account and usage of forms or certificates prescribed under this Act
or under the Central Sales Tax Act, 1956 and rules made hereunder;
(iv) Inventory
of goods held in stock as closing from whom such goods have been purchased,
date of purchase, number and date of sale voucher issued by stock at the time
of expiry of the period under the scheme;
(v) Amount
of reverse input tax credit in respect of goods held by the dealer in opening
stock on the date of commencement of the period of composition of tax
liability.
(11) Notwithstanding
anything contrary contained in any other provision of this Act, where a lump
sum has been accepted by the assessing authority under this section, assessing
authority shall not make an assessment in respect of turnover and tax covered
under the scheme for such period for which scheme is applicable but assessing
authority shall not be precluded from making assessment of tax on the turnover
not covered by the scheme.
Explanation: For the purpose of this section, the
assessing authority includes an officer appointed and posted by the
Commissioner at a check‑post.
27. Assessment
Or Reassessment Of Turnover Escaped
FROM ASSESSMENT AND
PERIOD OF LIMITATION FOR MAKING
ASSESSMENTS OR RE‑ASSESSMENTS
(1) If
the assessing authority has reason to believe that the whole or any part of the
turnover of a dealer, for any assessment year or part thereof, has escaped
assessment to tax or has been under Assessed or has been assessed to tax at a
rate lower than that at which it is assessable under this Act, or any deduction
or exemption have been wrongly allowed in respect thereof, the assessing
authority may, after issuing notice to the dealer and making such inquiry as it
may consider necessary, assess or reassess the dealer to tax according to law:
PROVIDED that the tax shall be charged at the rate at
which it would have been charged had the turnover not escaped assessment, or
full assessment as the case may be.
Explanation I: Nothing in this sub‑section shall
be deemed to prevent the assessing authority from making an assessment or full
assessment to the best of its judgement.
Explanation II: For the purpose of this section and of
section 31, "assessing authority" means the officer or authority who
has made the earlier assessment order, if any, and includes the officer or
authority having jurisdiction for the time being to assess the dealer.
Explanation III: Notwithstanding the issuance of
notice under this sub‑section, where an order of assessment or re‑assessment
is in existence from before the issuance of such notice it shall continue to be
effective as such, until varied by an order of assessment or re‑assessment
made under this section in pursuance of such notice.
(2) Assessment
order for any tax period of an assessment year may be made within the time
prescribed Linder Section 24.
(3) Except
as otherwise provided in this section or Section 28, assessment or re‑assessment
for any assessment year may be made at any time within a period of five years
after the expiry of assessment year for which assessment is to be made.
(4) Assessment
or reassessment order in respect of turnover escaped from assessment may be
passed at any time within five years and nine months ending on 31st December
after the expiry of the assessment year for which assessment is to be made,
provided that notice under this section has been served within a period of five
years and six months ending on 30th September after the expiry of the
assessment year for which assessment is to be made.
(5) Notwithstanding
anything contained in sub‑section (2) or sub‑section (3), where an
appellate authority under section 59 or a revising authority under section 60,
or the Tribunal either under section 61 or under section 62 or the High Court
under section 63 or the State Government Linder section 76 has-
(i) set aside an order of assessment or
reassessment and has directed assessing a authority to pass fresh assessment or
re‑assessment order; or
(ii) directed
the assessing authority to set aside an order of assessment or re‑assessment
and to pass fresh order of assessment or re‑assessment; or
(iii) quashed
any order of assessment or reassessment for want of jurisdiction of assessing
authority, or due to improper service of any notice or due to service of
improper notice, authority competent to make an order of assessment or
reassessment may make fresh order of assessment or re‑assessment before
expiry of the assessment year subsequent to the assessment year in which such
order or direction is received by the assessing authority according to rules or
procedure:
PROVIDED that where any assessment or reassessment
order made earlier has been quashed for want of proper service of notice or for
want of jurisdiction or for want of service of proper notice, fresh order of
assessment or re‑assessment may be made by the competent assessing
authority after serving proper notice properly and after affording reasonable
opportunity of being heard, to the dealer before expiry of the assessment year
subsequent to the assessment year in which such order quashing the earlier order
of assessment or re‑assessment is received by the competent assessing
authority according to rules or procedure.
(6) Where
an order of assessment or reassessment has been set aside by the assessing
authority himself under section 32 of the Act, a fresh order of assessment or
re‑assessment may be made before expiry of the assessment year in which
such order of assessment or re‑assessment has been set aside:
PROVIDED that if an order of assessment or re‑assessment
made ex-parte is set aside on or after first of
October in any assessment year, fresh order of assessment or re‑assessment
may be made on or before thirtieth of September of the assessment year
subsequent to the assessment year in which such ex-parte
order of assessment or re‑assessment was set aside:
PROVIDED FURTHER that where second or subsequent time
any order of assessment or re‑assessment is made ex-parte
and where such second or subsequent ex-parte order of
assessment or re‑assessment is to be set aside and a fresh order of
assessment or re‑assessment is to be made, such second or subsequent ex-parte order of assessment or re‑assessment may be set
aside and fresh order of assessment or re‑assessment may be made within
the time within which after setting aside first ex-parte
order of assessment or re‑assessment, fresh order of assessment or re‑assessment
was to be made.
(7) Notwithstanding
anything to the contained contrary in sub‑section (6) or section 32,
where-
(i) an order of assessment or re‑assessment
is to be made in compliance of an order passed or direction issued by an
appellate authority under section 59 or the revising authority under section 60
or the Tribunal either under section 61 or under section 62 or the High Court
under section 63 or the State Government under section 76; or
(ii) in
a case in which an order of assessment or re‑assessment is to be made in
exercise of powers under proviso to sub‑section (5), no fresh order of
assessment or re‑assessment shall be made after expiry of the period
prescribed under sub‑section (5) even if the assessing authority after
making an ex-parte order of assessment or re‑assessment
sets aside such order of assessment or re‑assessment and makes fresh
order of assessment or re‑assessment.
This provision shall also apply in cases of second and
subsequent assessment or re‑assessment orders made ex-parte.
(8) Notwithstanding
anything contained in sub‑section (3) or sub‑section (4), if the
Commissioner on his own or on the basis of reasons recorded by assessing
authority, is satisfied that it is just and expedient so to do, authorises the assessing authority in that behalf, such
assessment or reassessment may be made within a period of six years after
expiry of assessment year to which such assessment or reassessment relates
notwithstanding such assessment or reassessment may involve a change of
opinion:
PROVIDED that before authorising
the assessing authority by the Commissioner it shall not be necessary for
Commissioner to hear the dealer.
(9) Where
the proceedings for assessment or re‑assessment for any assessment year
remain stayed under the order of any court or authority, the order of
assessment or re‑assessment may be made before the expiry of the
assessment year subsequent to the assessment year in which the order vacating the
stay is received by the concerned assessing authority according to rules or
procedure.
(10) Where
in the assessment or re‑assessment of a dealer for any assessment year,
any Assessing Authority,-
(a) has
included any turnover and any superior authority or Court has, in exercise of
the powers lawfully vested in it, held such turnover to relate to the
assessment-
(i) of such dealer for any other assessment year, or
(ii) of
such dealer under the Central Sales Tax Act, 1956, or
(iii) of
any other dealer, whether under this Act, or under the Central Sales Tax Act,
1956,
(b) has
not included any turnover on the ground that if relates to assessment under the
Central Sales Tax Act, 1956 and any superior Authority or Court has, in
exercise of the powers lawfully vested in it, held such turnover to relate to
the assessment of that dealer under this Act, whether for such assessment year
or any other assessment year, then nothing contained in this section limiting
the time shall apply to assessment or re‑assessment whether under this
Act or under the Central Sales Tax Act, 1956 of such dealer or such other
dealer, relating to such assessment year or such other assessment year, as the
case may be.
(11) Notwithstanding
anything contained in this section, where the State Government is of the
opinion that due to any extra‑ordinary circumstances prevalent at the
time in the State or any part of it, it will be difficult to complete
assessment or re‑assessment in any case or class of cases within the time
prescribed under this section, before expiry of such period, it may, by
notification in the Gazette, extend the time limit prescribed under this
section for making assessment or re‑assessment in such a case or class of
cases.
(12) Where
any dealer claims refund of any amount deposited by him as tax or of any amount
deducted from him as tax under provisions of sub‑section (1) of section
34 or of any amount recovered from him as tax and where no assessment has been
made within the time prescribed under this section, nothing contained in this
section shall prevent the assessing authority from making an assessment of
turnover and tax beyond the time prescribed Linder this section for such
assessment year towards tax liability of which such amount has been deposited
or deducted or recovered.
28. Assessment
of escaped turnover in case of price variation
Where under agreement between seller and purchaser it
is agreed that sale price of goods due to price escalation shall be settled on
a latter date and in the circumstances such date falls in any assessment year
subsequent to the year in which goods have been sold, amount receivable due to
price settlement, such amount, for all purposes under this Act, shall be deemed
to be turnover during the tax period in which such settlement is made.
The Assessing Authority shall proceed to assess the
tax payable on such amount as his turnover of the tax period in which
settlement has been made:
PROVIDED that the tax on such turnover of sales shall
be charged at the rate at which it would have been charged had such turnover
been assessed for the assessment year to which such turnover belongs.
(1) Where
the assessing authority has reason to believe that any person with a view to
evade payment of tax or in order to claim any input tax rebate which he
otherwise is not eligible for or was carrying on business in the name of, or in
association with any other person either directly or indirectly, whether as an
agent, employee, manager, partner or power of attorney holder and guarantor,
relative or sister concern or in any other capacity, such person and the person
in whose name the registration certificate, if any, is taken, shall severally
and, or jointly be liable for payment of tax, penal interest or penalty or any
other amount due under the Act which shall be assessed, levied and recovered
from all or any such person as if such person or persons are dealers under the
Act. However, before taking any action under this section, the person concerned
shall be given a reasonable opportunity of being heard.
(2) Where
such rectification has the effect of enhancing the assessment, the assessing
authority concerned shall serve on the dealer a revised notice of demand in the
prescribed form.
30. Rounding
off of turnover and tax etc.
(1) The
amount of turnover, determined in the prescribed manner, shall if such amount
is not in the multiple of ten, be rounded off to the nearest multiple of ten
rupees, that is to say, a part of ten rupees which is less than five rupees
shall be ignored and any other part shall be counted as ten rupees. The amount
so rounded off shall be deemed to be the turnover of the assessee
for the purpose of assessment of tax under this Act.
(2)
The amount of tax, fee,
interest, penalty or any other sum payable or the amount of ref Lind due under
the provisions of this Act shall, where such amount contains part of a rupee,
be rounded off to the nearest rupees, that is to say, a part of a rupee which
is less than fifty paise shall be ignored and any
other part shall be counted as one rupee.
(1) Any
officer or authority, or the Tribunal or the High Court may on its own motion
or on the application of the dealer or any other interested person rectify any
mistake in any order passed by him or it under this Act, apparent on the face
of record, within three years from the date of the order sought to be
rectified:
PROVIDED that where an application under this sub‑section
has been made within such period of three years, it may be disposed of even
beyond such period:
PROVIDED FURTHER that no such rectification, as has
the effect of enhancing the assessment, penalty, fees or other dues, shall be
made unless reasonable opportunity of being heard has been given to the dealer
or other person likely to be there from all the provisions of the Act and rules
framed there under shall apply as if such notice have been served in the first
instance,
(1) In
any case in which an order of assessment or re‑assessment or order of
penalty has been made ex‑parte, the dealer may
apply to the assessing authority within thirty days of the service of the order
to set aside such order and re‑open the case; and if such authority is
satisfied that the applicant did not receive notice or was prevented by
sufficient cause from appearing on the date fixed, it may set aside the order
and re‑open the case for hearing:
PROVIDED that no such application for setting aside an
ex‑parte assessment order shall be entertained
unless it is accompanied by satisfactory proof of the payment of the amount of
tax admitted by the dealer to be due under this Act on the turnover of sales or
purchases, or both, as the case may be, admitted by the appellant in the
returns filed by him or at any stage in any proceedings under this Act,
whichever is greater:
PROVIDED FURTHER that where after setting aside an ex-parte order again an ex-parte
order has been passed and the assessing authority keeping in view the provision
under first or second proviso to sub‑section (5) of Section 27 is of the
view that if the ex-parte order is set aside,
sufficient time required for passing fresh order shall not be left, it may
refuse to set aside such second or subsequent ex-parte
order.
(2) Where
an assessment order under sub‑section (1) of section 24 is passed, ex‑parte, the dealer may apply to the Assessing Authority
within thirty days of the service of the order, to set aside such order and if
such authority is satisfied that the dealer has filed there turn and deposited
the tax due according to the return within thirty days from the last day
prescribed for filing such return, it may modify or set aside such order and
also the demand notice, if any, issued thereunder.
33. Payment
and recovery of tax
(1) Any
amount of tax or fee or penalty or any other amount which a dealer or other
person is liable to pay under any provision of this Act, shall be deposited by
the dealer or such other person in the prescribed manner within the prescribed
time.
(2) Subject
to provisions under sections (3), (4) and (6), the tax admittedly payable shall
be deposited within the time prescribed, failing which simple interest at the
rate of eighteen percent per annum shall become due and be payable on unpaid
amount with effect from the day immediately following the last date prescribed
till the date of payment of such amount and nothing contained in section 26
shall prevent or have the effect of postponing liability to pay such interest.
Explanation I: For the purpose of this sub‑section,
the tax admittedly payable means the tax which is due under this Act on the
turnover of sales or, as the case may be, on the turnover of purchases, or of
both, as disclosed in the accounts maintained by the dealer, or admitted by him
in any return or in any proceedings at any stage under this Act, whichever is
greater.
Explanation II: For the purpose of this section tax
admittedly payable includes an amount of composition money or any instalment of such composition money to be deposited by a
fixed date, as prescribed by the State Government or fixed by the Commissioner
under section 26 of this Act and amount of reverse input tax credit.
(3) The
amount of tax assessed under this Act in excess of amount of tax already
deposited, along with the interest payable according to the provisions of this
Act shall be deposited in the manner specified in and within thirty days of the
service of the notice of assessment and demand.
(4) If
the tax (other than the tax admittedly payable to which sub‑section (2)
applies, assessed, reassessed or enhanced by any authority or court remains
unpaid for three months after expiration of the period
specified in the notice of assessment and demand, simple interest at the rate
of eighteen percent per annum on the unpaid amount calculated from the date of
such expiration shall become due and be payable:
PROVIDED that the amount of interest under this sub‑section
shall be recalculated if the amount of tax is varied on appeal or revision or
by any order of a competent court or authority:
PROVIDED FURTHER that where an order of assessment or
reassessment is passed under remand proceedings or an order of assessment or
reassessment is passed after reopening of an exparte
order and the tax payable is enhanced the dealer shall be liable to pay
interest on such enhanced tax as it was enhanced in the order of assessment
made for the first time and for this purpose the date of service of the notice
of assessment and demand shall be deemed to be amended accordingly.
(5) The
amount of interest payable under sub‑sections (2), (3), (4) and (5) shall
be without prejudice to any other liability or penalty that the dealer may
incur under this Act or under any other law for the time being in force, and
shall be added to the amount of tax and be also deemed for all purposes to be
part of the tax.
(6) Where
realisation of any tax remained stayed by any order
of any court or authority and such order of stay is subsequently vacated, the
interest referred to in sub‑section (4) shall be payable also for any
period during which such order remained in operation.
(7) Amount
imposed by way of penalty under any provision of this Act shall be deposited in
the prescribed manner and within thirty days of service of the order imposing
such amount by way of penalty. Amount assessed as tax shall be deposited in the
manner specified in and within thirty days of the service of order of
assessment and notice of demand. Any other amount except the amount of tax
assessed and penalty imposed, assessed or imposed or determined as payable
under any provision of this Act, shall be paid in the prescribed manner and
within the prescribed time and where no such time has been prescribed within thirty
days of service of order by which such amount has been assessed, imposed or
determined.
(8) Notwithstanding
anything contained in any law to the contrary, the assessing authority may, at
any time or from time to time, by notice in writing a copy of which shall be
forwarded to the dealer at his last address known to the assessing authority,
require-
(a) any
person from whom any amount is due or may become due to the dealer, or
(b) any person who holds or may subsequently
hold money for or on account of the dealer
to pay to the assessing authority-
(i) forth with
upon the money becoming due or being held, or
(ii) at
or within the time specified in the notice not being before the money becomes
due or is held, so much of the money as is sufficient to pay the amount due by
the dealer in respect of arrears of tax and other dues under this Act, or the
whole of the money when it is equal to or less than that amount.
Explanation: For the purpose of this sub‑section,
the amount due to a dealer or money held for or on account of a dealer by any
person shall be computed after taking into account such claim, if any, as may
have fallen due for payment by such dealer to such person and as may be legally
subsisting.
(9) The
assessing authority may at any time or from time to time amend or revoke any
such notice.
(10) Any
person making any payment in compliance with notice under sub‑section (7)
shall be deemed to have made the payment under the authority of the dealer and the
receipt of the assessing authority shall constitute a good and sufficient
discharge of the liability of such person to the dealer to the extent the
amount referred to in the receipt.
(11) Any
person discharging any liability to the dealer after receipt of the notice
referred to in sub‑section (7) shall be personally liable to the
assessing authority to the extent of the liability discharged or to the extent
of the amount mentioned in such notice, whichever is less.
(12) Where
a person, to whom a notice under sub‑section (8) is sent, proves to the
satisfaction of the assessing authority that sum demanded or any part thereof
is not due by him to the dealer, or that he does not hold any money for or on
account of the dealer, then nothing contained in this section shall be deemed
to require such person to pay the sum demanded or any part thereof, as the case
may be, to the assessing authority.
(13) Any
amount-
(i) which is admitted by a dealer to be due in any tax return; or
(ii) of
tax assessed in excess of tax deposited by the dealer; or
(iii) of
tax deducted at source by a dealer or any other person; or
(iv) of
composition money or instalment of such composition
money; or
(v) wrongly
realized as tax from purchaser in contravention of provision under section 22;
or
(vi) ordered
to be paid under provision of section 52 or section 55; or
(vii) of
penalty; or
(viii) of
interest payable under this Act; or
(ix) otherwise
due under the provision of this Act is not paid within the prescribed time or
within such extended time as may be allowed by any competent Court or authority
shall become recoverable as arrears of land revenue.
Notwithstanding anything contained in any other law to
any special or general order of the State Government, any such amount shall be
recovered as arrears of land revenue, or in prescribed manner by the assessing
authority or any other officer authorised by the
State Government in that behalf and such authority or officer shall, for the
purposes of such recovery
(i) have all the powers which a Civil Court
has under the Code of Civil Procedure, 1908 for the purpose of recovery of an
amount due under a decree;
(ii) have
power to require the assessing authority or such authorised
officer , having jurisdiction in any other area to make such recovery if the
defaulter is or has property within the area of such other assessing authority
or officer shall proceed to make recovery in prescribed manner.
(14) In
respect of any sum recoverable under this Act as arrears of land revenue the
assessing authority may forward to the Collector a certificate under his
signature specifying the sum due. Such certificate shall be conclusive evidence
of the existence of the liability of its amount of the person who is liable and
Collector on receipt of the certificate shall proceed to recover from such
person the amount specified therein as if it were an arrear of land revenue:
PROVIDED that without prejudice to the powers
conferred by this section the Collector shall, for the purpose of recovering
the amount specified in the certificate, shall have also all the powers which:-
(a) a
Collector has under the Revenue Recovery Act, 1890; and
(b) a
Civil Court has under the Code of Civil Procedure, 1908, for the purpose of
recovery of an amount due under a decree.
Explanation: The expression "Collector"
includes an Additional Collector or any other officer authorised
to exercise the powers of a Collector under the law relating to land revenue
for the time being in force in the State.
(15) Notwithstanding
anything contained in sub‑section (2) and sub‑section (3) and
notwithstanding any judgement, decree or order of any
Court, Tribunal or other authority, where any notice of assessment and demand
in respect of any tax or other dues under this Act, is served upon a dealer by
an assessing authority and an appeal, revision or other proceeding is filed in
respect of such tax or dues then-
(a) where
as a result of such appeal, revision or other proceeding the amount of such tax
or other dues is enhanced, the assessing authority shall serve upon the dealer
a fresh notice only in respect of the amount by which such tax or other dues
are enhanced, and any proceeding in relation to the amount specified in the
notice already served upon him before the disposal of such appeal, revision or
other proceeding may be continued from the stage at which it stood immediately
before such disposal;
(b) where
as a result of such appeal, revision or other proceeding the amount of such tax
or other dues is reduced-
(i) it shall not be necessary to serve upon
the dealer a fresh notice but only the reduced amount shall be realized,
(ii) if
any recovery proceedings are pending before any officer or authority other than
the Assessing Authority, the Assessing Authority shall intimate such reduction
to such officer or authority,
(iii) any
proceeding initiated on the basis of the notice or notices served upon the
dealer before the disposal of such appeal, revision or other proceedings,
including any recovery proceeding, may be continued in relation to the amount
so reduced from the stage at which it stood immediately before such disposal.
(c) No
fresh notice shall be necessary in any case where amount of the tax or other
dues is not enhanced (with reference to the amount assessed by the Assessing
Authority) as a result of such appeal, revision or other proceedings.
(16) Any
amount paid or deposited by, or recovered from, or refundable to a dealer under
the provisions of this Act, shall first be adjusted towards the principal
amount of tax, fee, penalty or other dues outstanding against him and the
excess if any, shall then be adjusted towards the interest, if any, due from
him.
(17) Where
any amount of tax assessed under sub‑section (2) of section 25 or penalty
imposed under section 54 is recoverable from an owner of a vehicle and recovery
certificate has been issued, the officer competent to execute the recovery
certificate may take assistance of police and other officers or officials of the
State Government in locating such vehicle or other vehicles of the same owner.
If so required by the recovery officer such other officers or official shall be
empowered to detain such vehicle. Whenever any such vehicle is detained by any
officers or official he shall give the cause of detention in writing to the
person in charge of the vehicle at the time of detention and shall immediately
inform the officer executing the recovery certificate. Officer executing the
recovery certificate shall proceed with according to law to realise
arrears against such owner of vehicle:
PROVIDED that if amount recoverable is paid after
detention of vehicle, the vehicle shall be set free:
PROVIDED FURTHER that if at the time of detention if
some goods are loaded on it and owner of such goods is a person other than the
owner of the vehicle the owner or the person in‑charge of the goods shall
be allowed to remove such goods from such vehicle if he desires so.
34. Mode of
recovery of tax due in certain cases: tax deduction at source
(1) Notwithstanding
anything contained in section 22 and without prejudice to any other mode of
recovery or payment or collection of tax due under this Act, but subject to
other provisions under this section-
(A) Every
person responsible for making payment to any dealer (hereinafter in this
section referred to as the contractor) for discharge of any liability on
account of valuable consideration payable for the transfer of property in goods
(whether as goods or in some other form) in pursuance for a works contract, not
being a building contract of such class or value as may be notified by the
State Government in public interest in this behalf, shall, at the time of
making such payment to the contractor, either by credit or in cash or in any
other manner, deduct an amount equal to amount of tax payable by the contractor
on the turnover of goods, determined in the manner prescribed under sub‑section
(3) of section 4 of the Act, in respect of taxable goods sold inside the State
by way of transfer of property in goods (whether as goods or in some other
form) involved in the execution of works contract, towards full satisfaction of
tax payable on sales of goods inside the State. Amount of tax to be deducted
shall be computed in accordance with the rates of tax provided by or under sub‑section
(1) of section 4:
PROVIDED that where the person responsible for making
payments to the contractor is unable to ascertain the turnover of various goods
involved in the execution of the works contract or if the contractor, for any
reason claims that he is not liable to pay tax on turnover of sales inside the
State of any taxable goods or that he is liable to pay as tax an amount lesser
than the amount of deduction worked out on turnover of sales of taxable goods
inside the State, the person responsible for making payment shall require the
contractor to produce directions issued by the assessing authority of the
contractor in this behalf and thereupon on receipt of such directions, such
person shall deduct such amount towards tax or, as the case may be, shall not
deduct any amount towards tax, as may be mentioned in the directions issued in
this behalf by the assessing authority on the application of the contractor:
PROVIDED FURTHER that where any contractor has made deduction
from the payments made to his sub‑contractor in accordance with sub‑section
(5), the amount of such payments shall be deducted from the amount on which
deduction is to be made under this clause.
(B) Where
in respect of a sale (except a sale in the course inter‑State trade or
commerce or a sale outside the State or a sale in the course of export) of
taxable goods, under an agreement of transfer of right to use any goods for any
purpose (whether or not for a specified period) for cash, deferred payment or
other valuable consideration, lessor called a seller
of goods is a dealer other than a registered dealer and where lessee called
purchaser of goods, not being liable to pay tax under the Act on purchase of
such goods, is either a registered dealer or a person other than a dealer
amongst following:-
(i) the Central Government or any State Government; or
(ii) any
local authority, any corporation or undertaking established or constituted by
or under a Central Act or a State Act; or
(iii) any
co‑operative society or other society, club, firm or other association of
persons, whether incorporated or not, the person responsible for making payment
to the lessor in respect of sale of goods, for
discharge of liability on account of valuable consideration payable for such
sale of goods under an agreement of transfer of right to use any goods, shall
at the time of making such payments to the seller, either by credit or by
payment in cash or in any other manner, towards full satisfaction of amount of
tax payable by the seller, deduct an amount equal to the amount computed on the
turnover of such sale at a rate provided by or under sub‑section (2) of
section 4:
PROVIDED that where the lessee is not able to
ascertain the turnover of taxable goods sold inside the State or if for any
reason, the lessor claims that he either is not
liable to pay any amount as tax on any turnover of sales inside the State of
any taxable goods or is liable to pay as tax a lesser amount than the amount of
deduction worked out on turnover of sales as above, the person responsible for
making payment shall require the lessor to produce
directions issued in this behalf by the assessing authority of the lessor and thereupon on receipt of such directions such
person shall deduct such amount or shall not deduct any amount towards tax, as
may be mentioned in the directions issued in this behalf, on the application of
the lessor, by the assessing authority.
(C) Except
in respect of a sale of any goods under a works contract or under an agreement
of transfer of right to use any goods for any purpose (whether or not for a
specified period) for cash, deferred payment or other valuable consideration,
where a dealer selling any taxable goods is a dealer other than a registered
dealer and is liable to pay tax under this Act on sale of such goods, and where
the person purchasing such goods, not being liable to pay tax under the Act on
purchase of such goods, either is a registered dealer or is a person other than
a dealer amongst following:-
(a) the Central
Government or any State Government; or
(b) any
corporation or undertaking established or constituted by or under a Central Act
or a State Act, person responsible for making payments to the seller for
discharge of liability on account of valuable consideration payable for such
sales of goods, shall at the time of making such payments to the seller either
by credit into the account of the seller or by payment in cash or in any other
manner, deduct an amount equal to the amount of tax payable under this Act,
towards full satisfaction of payment of tax on such sales by the dealer selling
such goods. Amount to be deducted shall be computed on the turnover of sales of
goods at rates provided by or under sub‑section (1) of section 4:
PROVIDED that if the dealer selling any taxable goods,
for any reason claims that he either is not liable to pay tax on such sales of
goods inside the State or is liable to pay as tax an amount lesser than amount
of deduction worked out on turnover of sales, the person responsible for making
payment shall require the selling dealer to produce directions issued in this
behalf by the assessing authority and thereupon on receipt of such directions
such person shall deduct such amount or shall not deduct any amount towards
tax, as may be mentioned in the directions issued in this behalf, on the
application of the selling dealer, by the assessing authority.
(D) Where
seller of such goods, as the State Government by notification specify, is a
registered dealer and has sold such goods on behalf of a principal, principal
being a person other than a registered dealer, to a registered dealer who is
carrying on business in such goods, the purchasing dealer, from amount payable
to the seller for discharge of any liability on account of valuable
consideration payable for such sale of goods and amount of tax on such sale
under this Act, shall deduct an amount
equal to the amount of tax payable towards the full satisfaction of the
tax payable on such sale. Amount to be deducted shall be computed on the
turnover of sales at such rates as may be notified by the State Government
under sub‑section (1) of section 4 and, or sub‑section (1) of
section (5) in respect of such goods:
PROVIDED that if the dealer selling any taxable goods,
for any reason claims that he either is not liable to pay tax on such sales of
goods inside the State or is liable to pay as tax an amount lesser than amount
of deduction worked out on turnover of sales, the person responsible for making
payment shall require the selling dealer to produce directions issued in this
behalf by the assessing authority of the selling dealer and thereupon on
receipt of such directions such person shall deduct such amount or shall not
deduct any amount towards tax, as may be mentioned in the directions issued in
this behalf, on the application of the selling dealer, by the assessing
authority.
(2) Where
selling dealer referred to in any of the clauses under sub‑section (1),
of any goods either claims that he is liable to pay as tax an amount lesser
than the proposed amount of deduction or claims that he is not liable to pay
any amount of tax in respect of sales referred to in sub‑section (1)
above, such dealer may apply to the assessing authority having jurisdiction
over the principal place of business of the dealer or if the dealer has no
fixed place of business, to the assessing authority in whose jurisdiction such
dealer ordinarily resides, with such evidences as are required to substantiate
the claim of the dealer, for issue of direction to the purchaser to deduct
lesser amount of tax or as may be, not to deduct any amount as tax.
(3) The
assessing authority referred to in sub‑section (2), after giving
reasonable opportunity of being heard to the dealer and after examining the
liability of payment of tax of the dealer according to the relevant provisions
of the Act, in respect of sale of goods, shall by an order in writing direct
the purchaser of the goods to deduct such amount as tax, or, as the case may
be, not to deduct any amount as tax, as may be mentioned in the order made by
him.
(4) Nothing
contained in sub‑sections (1) to (3) above and in sub‑section (5)1
below shall prevent the assessing authority from making an assessment of tax
payable by the dealer in accordance with other provisions of the Act and
notwithstanding anything contained in this section, the dealer shall be liable
to pay tax according to other relevant provisions of the Act.
(6) Any
contractor responsible for making any payment of discharge of any liability to
any sub‑contractor, in pursuance of a contract with the sub‑contractor,
for the transfer of property in goods, whether as goods or in some other form,
involved in the execution, whether wholly or in part, of the work undertaken by
the contractor, shall, at the time of such payment or discharge, in cash or by cheque or draft or by any other mode, deduct an amount
equal to four percent of such payment or discharge, purporting to be a part of
full amount of the tax payable under this Act on such transfer from the bills
or invoices raised by the sub‑contractor as payable by the contractor.
(7) The
person making such deductions under sub‑section (1) or sub‑section
(5) shall, at the time of payment or discharge furnish to the selling dealer a
certificate in such form and manner and within such period as may be
prescribed.
(8) The
person responsible for making the payments to the selling dealer shall submit
such return of such payments at such intervals, within such period, in such
form and verified in such manner, as may be prescribed, but the Assessing
Authority, may, in its discretion, for reasons to be recorded, extend the date
for submission of the return by such person. The amount deducted under sub‑section
(1) or sub‑ section (5) shall be deposited into the Government Treasury
by the person making such deduction before the expiry of the month following
that in which deduction is made.
(9) Any
deduction made in accordance with the provisions of this section and credited into
the Government Treasury shall be treated as a payment of tax on behalf of the
selling dealer, and credit shall be given to him for the amount so deducted on
the production of the certificate, referred to in sub‑section (7) in the
tax return of the relevant period or the assessment made, as the case may be,
for the relevant assessment year and any amount found in excess of tax due
shall be refunded to the selling dealer.
(10) If
any such person referred to in sub‑section (1) or sub‑section (5)
fails to make the deduction or, after deducting, fails to deposit the amount so
deducted as required by sub‑section (6), the assessing authority may,
after giving to such person an opportunity of being heard, by order in writing,
direct such person shall pay, by way of penalty, a sum not exceeding twice the
amount deductible under the section but not so deducted and, if deducted, not
so deposited into the Government Treasury.
(11) Without
prejudice to the provisions of sub‑section (10), if any such person fails
to make the deduction or, after deducting, fails to deposit the amount so
deducted, he shall be liable to pay compound interest at the rate of eighteen
percent per annum on the amount deductible under this section but not so
deducted and, if deducted, not so deposited from the date on which such amount
was deductible to the date on which such amount is actually deposited.
(12) Where
the amount has not been deposited after deduction, such amount together with
interest referred to in sub‑section (11) shall be charged upon all assets
of the person concerned.
(13) Payment
by way of deduction in accordance with sub‑section (1) or sub‑section
(5) shall be without prejudice to any other mode of recovery of tax due under
this Act from the selling dealer under sub‑section (1) or sub‑section
(5), as the case may be.
(14) Where
purchaser of goods under any of the clauses under sub‑section (1) makes
purchases from a person other than a dealer, no deduction of any amount shall
be made by the purchaser of the goods, but the onus to prove that goods have
been purchased from a person other than a dealer shall lie on such purchaser of
goods, failing which it shall be presumed that goods have been purchased from a
dealer and deduction has not been made in contravention of the provisions under
this section.
Explanation: For the purpose of this section,
assessing authority in relation to person responsible for making payments to
the seller means the officer having jurisdiction over the place where the place
of business or residence of such person is located.
35. Moratorium
for payment of tax in lieu of exemption from tax
(1) Notwithstanding
anything contained in this Act, where the State Government is of the opinion
that it is necessary so to do for increasing production of any goods or for
promoting the development of any industry already in existence, in the State
generally or in any districts or parts
of districts in particular, it may on application or otherwise in any particular
case or generally, by notification declare, that to the dealer running new
units whose date of starting production falls on or before December 31, 2001
and dealers owning manufacturing units which have under taken expansion,
diversification or modernization or backward integration and have started
production on or before December 31,2001, if such dealers hold an eligibility
certificate issued under the provisions of section (4‑A) of the U.P.
Trade Tax Act, 1948, rules made and notifications issued thereunder
or if such dealers may be issued eligibility certificate under sub‑section
(2) of this section, in lieu of exemption from tax, moratorium for payment of
tax to the extent and during the period provided in sub section (3) of this
section be allowed subject to conditions given under sub‑section (4) of
this section and also subject to such other conditions as may be prescribed or
as the State Government may, by notification in the Gazette, specify:
PROVIDED that notwithstanding anything contained
contrary in any other provision of this Act; and in particular the provision of
repeal of sections (4‑A) and 8(2‑A) of the U.P. Trade Tax Act,
1948, rules made and notifications issued thereunder,
in respect of dealers who have been granted facility of moratorium for payment
of tax admittedly payable, such facility shall continue and shall be deemed to
have been granted under this Act and for this purpose, the relevant provisions
under the U.P. Trade Tax Act, 1948, as those stood at the time, shall be deemed
to be the part of this Act. Any applications pending for issue of orders for
moratorium for payment of tax admittedly payable before the Commissioner Trade
Tax under the U.P. Trade Tax Act, 1948 shall be deemed to be pending before the
authority prescribed under this section and the same shall be disposed of
according to the provisions of the U.P. Trade Tax Act, 1948 as it was in force
on the date of presentation of the application before the Commissioner under
that Act.
(2) Notwithstanding
anything contained contrary to the provision of this Act and in particular to
the provisions of repeal of sections (4‑A), 8(2‑A) of the U.P.
Trade Tax Act, 1948 rules made and notifications issued there under-
(i) application for grant of eligibility
certificate presented on a date prior to the date of commencement of this Act
before the competent authority under that Act shall be deemed pending before
the prescribed authority under this Act;
(ii) dealer
owning new units whose date of starting production falls before the date of
commencement of this Act and dealers owning such units as have undertaken
expansion or diversification or modernization or backward integration who could
not present application for granting of eligibility certificate under the
provisions of section 4‑A of the U.P. Trade Tax Act, 1948, before the
date of commencement of this Act and time prescribed for presenting the same
has not expired on the date of commencement of this Act, may apply for grant of
eligibility certificate by the last date prescribed under that Act for this
purpose before the prescribed authority under the Act.
Applications under clauses (i)
and (ii) above shall be disposed of by the prescribed authority according to
the provisions of the U.P. Trade Tax Act, 1948, rules made and notifications
issued there under as they stood before the commencement of this Act. For this
purpose such provisions shall be deemed to be part of this Act. Dealers found
eligible for grant of eligibility certificate shall be granted eligibility
certificate.
(3) Dealers
holding eligibility certificate either granted under the provisions of the U.P.
Trade Tax Act, 1948 before the date of commencement of the Act or who may be granted eligibility certificate in accordance
with the provisions under sub‑section (2) of this section, shall be
eligible for the facility of moratorium for payment of tax in lieu of exemption
from tax to the extent and for the period as under:-
(i) Subject to provision under clause (ii)
below, to the extent of one hundred and thirty percent of amount of exemption
from tax mentioned in the eligibility certificate less aggregate of amount of
exemption from tax as has been availed before the date of commencement of this
Act, in cases of dealers who have enjoyed exemption from tax during any period
before the commencement of this Act and in other cases in which dealers have
opted moratorium for payment of tax in lieu of exemption from tax, to the
extent of aggregate amount of one hundred percent of the amount of exemption
from tax mentioned in the eligibility certificate and fifty percent of the
amount of fixed capital investment mentioned in the eligibility certificate
less aggregate of such amount in respect of which facility for moratorium for
payment of tax has been availed during the period before the commencement of
this Act.
(ii) In
respect of tax payable for the remaining period as on the date of commencement
of this Act, out of the maximum period mentioned in the eligibility certificate
.
Explanation: For the purpose of computation of amount
of tax for the purpose of deferment, net amount of tax payable in respect of
any manufactured goods arrived at by deducting the amount of input tax credit
relating to goods that are intended to be consumed or utilised
or used in the manufacture of such goods or intended to be used in packing of
such manufactured goods, from amount of tax admittedly payable on turnover of
sales of such manufactured goods shall be taken into account and such amount
shall not be clubbed with any other amount of tax payable.
(4) Facility
of moratorium for payment of tax under this section shall be granted and be
subject to the following conditions:-
(i) Facility shall be allowed only to those
manufacturers who hold eligibility certificate referred to in sub‑sections
(2) and (3) of this section and who obtain certificate of moratorium in the
prescribed manner from the prescribed authority,
(ii) Facility
shall be limited to the amount of tax and for the period mentioned in sub‑section
(3) of this section.
(iii) Payment
of amount of tax for each assessment year, which the dealer would have been
liable to pay as tax admittedly payable on sales of goods less amount of input
tax credit relating to goods intended to be consumed or utilised
or used in the manufacture of goods to which the eligibility certificate
relates, shall be deferred for a period of five years. Such period of 5 years
shall be computed from 1st May of the assessment year subsequent to assessment
year to which such amount of tax relates.
(iv) Facility
shall be available to only such manufacturers who create first or second charge
on its property in favour of the State Government
sufficient to cover the amount of tax in respect of which moratorium has been
granted.
(v) The
amount of tax the payment of which has been deferred, in respect of each
assessment year shall be paid by the manufacturer in a lump sum within one
month of the expiry of the period of moratorium.
(vi) The
moratorium shall cease and the total amount shall become payable-
(a) on
the date of discontinuance of business where the manufacturer discontinues
business within the meaning of Explanation‑II of sub‑section (4) of
section 3 of this Act;
(b) on
the date on which dealer violates any of the conditions subject to which
eligibility certificate has been granted;
(c) on
the date on which order of cancellation of certificate of moratorium under sub‑section
(5) is served on the dealer and the amount shall be paid in lump sum within
three months of its so becoming payable.
(vii) Facility
shall not be admissible in respect of the amount of tax assessed in excess of
tax admittedly payable.
(viii) Facility
shall be admissible in respect of tax on sales of goods mentioned in the
eligibility certificate.
(ix) Facility
may be withdrawn by the State Government by notification in the Gazette, where
it is of the opinion that it is no longer in public interest, provided that the
facility shall not be withdrawn with retrospective effect.
(x) Facility
shall be withdrawn on cancellation of certificate of moratorium by the
Commissioner under sub‑section (5) of this section in such a case
facility shall be withdrawn with effect from the date mentioned in the order.
(xi) Facility
shall not be available in respect of tax payable on purchases of goods, if any,
and in respect of sales of goods in respect of which eligibility certificate is
not applicable.
(xii) If
the amount in respect of which moratorium has been granted is not paid within
the time specified in clause (v) or (vi), as the case may be, the manufacturer
shall in addition to any penalty which the assessing authority may deem fit to
impose under section 54, be liable to pay interest in accordance with sub‑section
(2) of section 33 for the entire period during which the amount remained deferred
and subsequently till the date of its payment.
(xiii) Facility
shall be subject to such other conditions as maybe prescribed or as may be
notified in Gazette by the State Government in this behalf.
(5) The
Commissioner may cancel the certificate of moratorium in tile following
circumstances:-
(i) Where dealer is involved in the evasion
of tax either under this Act or under the Central Sales Tax Act, 1956; or
(ii) Where
dealer has not paid any amount of tax or penalty due from him either under this
Act or under the Central Sales tax Act, 1956; or
(iii) Where
the dealer has acted in contravention of any of the conditions of eligibility
certificate; or
(iv) Where
dealer has discontinued business; or
(v) Where
the dealer has misused the facility in any manner.
Explanation: The expressions " new units"
and "units which have undertaken expansion, diversification or
modernization or backward integration" and "eligibility
certificate" shall have same meanings as assigned to them under section 4‑A
of tile U.P. Trade Tax Act, 1948 as it stood on the date of starting production
by such units.
36. Recovery
or refund of petty amounts to be ignored
Notwithstanding anything contained in this Act, no
tax, fee, interest or penalty under this Act shall be recovered and no refund
shall be allowed if the amount involved for any assessment year is less than
five rupees.
37. Recovery
of tax in case of a company under liquidation
(1) Every
person-
(a) who
is the liquidator of a company which is being bound up, whether under orders of
a Court or otherwise; or
(b) who
has been appointed the receiver of any assets of a company (hereinafter
referred to as the liquidator) shall within thirty days after he has become
such liquidator, give notice of his appointment as such to the appropriate
authority.
(2) The
appropriate authority shall after making such inquiry or calling for such
information as it may deem fit, notify the liquidator within three months from
the date on which he receives notice of the appointment of the liquidator the
amount which in the opinion of the appropriate authority would be sufficient to
provide for any tax which is then or likely thereafter to become, payable by
the company.
(3) The
liquidator shall not part with any of the assets of the company or the
properties in his hands until lie has been notified by the appropriate
authority under sub‑section (2) and on being so notified, shall set aside
on amount equal to the amount notified and, until lie so sets aside such
amount, shall not part with any of the assets:
PROVIDED that nothing contained in this sub‑section
shall debar the liquidator from parting with such assets or properties in
compliance with any order of a Court or for the purpose of the payment of tax
payable by the company under this Act or for making any payment over debts due
to Government on the date of liquidation or for meeting such costs or expenses
of the winding up of the company as are in the opinion of the appropriate
authority reasonable.
(4) If
the liquidator fails to give the notice in accordance with sub‑section
(1) or fails to set aside the amount as required by, or parts with any of the
assets of the company or the properties in his hands in contravention of the
provisions of such section (3), he shall be personally liable for the payment
of the tax which the company would be liable to pay:
PROVIDED that if the amount of any tax payable by the
company is notified under sub‑section (2), the personal liability of the
liquidator under this sub‑section shall be to the extent of such amount.
(5) Where
there are more liquidators than one, the liquidations and liabilities attached
to the liquidator under this section shall attach to all the liquidators
jointly and severally.
(6) The
provisions of this section shall have effect notwithstanding anything to the
contrary contained in any other law for the time being in force.
Explanation: (1) "appropriate authority" in
relation to a company means the competent authority to assess the tax on the
company.
(2) company
has the meanings assigned to it by clause (i) of sub‑section
(1) of section 3 of the Companies Act, 1956 (1 of 1956).
38. Liability
of director of private company in liquidation
Notwithstanding anything contained in the Companies
Act, 1956, when any private company is wound up and any tax assessed on the
company under this Act for any period, whether before or in the course of or
after its liquidation, can not be recovered, then every person who was a
director of the private company at any time during the period for which the tax
is due shall be jointly and severally liable for the payment of such tax unless
he proves that the non‑recovery cannot be attributed to any gross
neglect, misfeasance or breach of duty on his part in relation to the affairs
of the company.
39. Power
to grant instalment
(1) Subject
to such conditions and restrictions, including the conditions regarding
furnishing security to the satisfaction of the assessing authority, as may be
deemed fit to be imposed-
(a) the State Government may permit any
dealer or other person, against whom any amount of tax, penalty or other dues is outstanding, to pay the amount in
such number of monthly installments not exceeding twenty four, as it may
consider proper in the circumstances of the case; and
(b) the
Commissioner may likewise permit any dealer or other person, against whom any
amount of tax, penalty or other dues aggregating not more than one lakh rupees is outstanding, to deposit the same in such
number of monthly installments, not exceeding twelve, as he may consider proper
in the circumstances of the case.
(2) Where
such dealer or other person fails to furnish, within sixty days of the order
referred to in sub‑section (1), adequate security to the satisfaction of
the assessing authority concerned for payment of the outstanding amount, or
fails to comply with the conditions or restrictions imposed in such order, the
amount due shall be recoverable at once.
(1) Subject
to provisions of sub‑section (2) of section 42, the assessing authority
shall in the manner prescribed; refund to the dealer an amount of tax, fees, or
other dues paid or credited in excess of the amount due from him under this
Act:
PROVIDED that, amount found to be refundable shall
first be adjusted towards tax or any other amount outstanding against the
dealer under this Act or under the Central Sales Tax Act, 1956 or under the
Uttar Pradesh Trade Tax Act, 1948 and only the balance if any, shall be
refunded:
PROVIDED FURTHER that in respect of amount of input
tax credit subject to provisions under sections 41 and 42 be allowed only after
the dealer has submitted returns for all such tax periods for which he is
required to submit returns for the assessment year to which such refund relates
and where the dealer has not furnished all such returns only after the final
assessment for such assessment year has been made.
(2) Where
amount is found refundable in accordance with the provisions under sub‑section
(1), the same shall be refunded along with simple interest at a rate of nine
percent per annum. For the purpose of interest, deposits made on earlier dates
shall be considered towards tax payable. The interest shall be computed with effect
from 1stMay of the assessment year subsequent to assessment year in which the
excess amount is deposited or credited and if excess amount has been deposited
in more than one year, interest shall be computed in respect of amount of
excess deposit in each assessment year separately with effect from 1st of May
of assessment year subsequent to the assessment year in which such excess
amount has been deposited.
(3) Notwithstanding any judgment, decree or order
of any Court or authority, no refund shall be allowed of any tax or fee
due under this Act on the turnover of sales or purchases or both, as the case
may be, admitted by the dealer in the returns filed by him or at any stage in
any proceedings under this Act.
(4) Notwithstanding
anything contained contrary in this section any dealer to whom refund of any
amount is to be made, may, before the date such refund is allowed, apply to the
authority competent to allow refund for withholding amount of refund for
adjustment towards his future liabilities either under this Act or under the
Central Sales Tax Act, 1956. If the dealer has presented application for
withholding amount of refund, authority competent to issue refund shall
withhold amount of refund. In such a case dealer shall not be entitled for
interest.
(5) Where
any amount of tax under sub‑section (1) of section 34 has been deducted
from any dealer as tax payable by him for any assessment year, if annual return
of turnover has not been submitted by the dealer or if dealer has not been
assessed for such assessment year, amount deducted, for the purpose of sub‑section
(3) shall be deemed to be tax due under the Act and shall not be refunded to
the dealer.
Explanation I: The date of refund shall be deemed to
be the date on which intimation regarding preparation of the refund voucher is
sent to the dealer in manner prescribed.
Explanation (II): The expression ‘refund’ includes an
adjustment under the proviso to sub‑section (1).
(1) Notwithstanding
anything contained in section 40, if a registered dealer has filed any return
for any tax period as required under this Act and the return shows any amount
to be refundable to the dealer on account of sales in course of export out of
the territory of India, then pending audit and investigation to establish the
correctness of the claim and consequent assessment, if any, the dealer may
apply in the manner and form prescribed to the Commissioner for grant of
provisional refund of amount of input tax credit relating to such sales:
PROVIDED that if any amount of tax, fee or penalty or
any other amount either under this Act or under the Central Sales Tax Act, 1956
or under the U.P. Trade Tax Act, 1948 is due against such dealer, amount found
refundable first be adjusted towards such amount of tax or fee or penalty, as
the case may be, and excess, if any, shall be refunded to the dealer.
(2) Subject
to the provisions of sub‑section (3), the Commissioner may require the
dealer to furnish a Bank Guarantee or other security as may be prescribed for
an amount equal to the amount of refund and on receipt of such guarantee or
other security, the Commissioner shall grant the dealer a provisional refund
that may be determined as refundable.
(3) The
Commissioner may direct the assessment under section 39 of such dealer in
respect of the year containing the period covered by the said return to be
taken up as early as practicable and adjust the grant of provisional refund
against tax due, if any, as a result of that assessment.
(4) If,
on assessment, the provisional refund granted under sub‑section (2) is
found to be in excess, then the excess amount of refund shall be recovered from
the dealer along with interest, as if it is tax due from the dealer under this
Act.
(5) Simple
interest will be charged on such excess amount referred to in sub‑section
(4) at the rate of eighteen percent per annum from the date of grant of
provisional refund till the date of its repayment.
42. Withholding
of refunds in the interest of revenue
Notwithstanding anything contained contrary in any
other provisions of this Act, where after giving reasonable opportunity of
being heard to the dealer or any other person, assessing authority is satisfied
that-
(i) turnover shown in any return submitted
by any dealer is not reasonable and the dealer has prevented in any manner the
assessing authority or any other competent officer from making inspection and
examination of books, accounts or documents or goods shown to be held in stock
by such dealer; or
(ii) there
is prima facie evidence on record to show that the dealer has shown lesser
turnover of sales or turnover of purchases than the actual in any return; or
(iii) any
purchase in respect of which in any return input tax credit has been claimed
but such purchase is not verifiable; or
(iv) the
dealer has claimed input tax credit on the basis of purchase invoices or bills
or cash‑memos without making purchases of goods shown in such purchase
invoices or bills or cash‑memos, and if the assessing authority is of the
opinion that if refund is allowed, it will become difficult to realise any amount of tax or penalty to be levied in
future, it may pass an order for withholding refund for a period not exceeding
three months beyond the date of passing of assessment order in respect of such
assessment year for which above stated reasons have been found, of any amount
due to the dealer for adjustment towards future liabilities of the dealer:
PROVIDED that if the dealer furnishes security of the
amount of refund to the satisfaction of the assessing authority, refund shall
be released:
PROVIDED FURTHER that if any refund has been withheld
under this section, and if any amount out of refundable amount is adjusted
towards any tax liability of the dealer, the dealer shall not be entitled for
any amount of interest on amount so adjusted.
43. Procedure for disbursement of amount
wrongly realised by
dealers as tax
(1) Where
any amount has been realised from any person by any
dealer, purporting to do so by way of realisation of
tax on the sale or purchase of goods, in contravention of provisions under
section 22 such dealer shall deposit the entire amount so realised
in such manner and within the period prescribed under section 23.
(2) Any
amount deposited by any dealer under sub‑section (1) shall to the extent
it is not due as tax, be held by the State Government in trust for the person
on whom such liability has been passed ultimately in respect of goods on the
sale or purchase which excess amount has been charged.
(3) Where
any amount is deposited by any dealer under sub‑section (1) such amount
or any part thereof shall on a claim being made in that behalf be refunded in
the manner prescribed to the person on whom liability of such amount ultimately
has been passed:
PROVIDED that no such claim shall be entertained after
expiry of three years from the date of order of assessment or one year from the
date of the final order on appeal, revision or reference if any in respect
thereof which ever is later.
(4) Where
any amount has been deposited by any dealer in accordance with provisions under
sub‑section (1), dealer shall not be entitled to allow refund of such
amount to the purchaser of goods.
Explanation: The expression "Final order on
appeal, revision or reference" includes an order passed by the Supreme
Court under Article 32, Article 132, Article 133, Article 136 or Article 137 or
by the High Court under Article 226 or 227 of the Constitution.
44. Input
tax credit exceeding tax liability
If for any assessment year, amount of input tax credit
determined under section 14 exceeds tax liability for that assessment year, the
excess amount may be set‑off against any outstanding dues payable under
this Act, or the Central Sales Tax Act, 1956, or the U.P. Trade Tax Act, 1948.
45. Power to order production of accounts and
power of entry, inspection, search and seizure
(1) Without
prejudice to other provisions under this Act any officer empowered by the State
Government in this behalf for the purpose of this Act, may require-
(i) any dealer to produce before him any
book, document or account in his possession relating to his business or
relating to business of other dealers; or
(ii) any
other person who carry on activities ancillary or incidental to or in
connection with the business of buying or selling goods by dealers whether
business of such activities is carried on as a sole business or as partial
business, to produce before him any such book or account or document as is in
his possession, relating to details of goods and, or transactions of sales and,
or purchases of goods or receipts and, or dispatches of goods or transportation
or storage or manufacture or processing of goods, relating to his business or,
as the case may be, relating to the business of other dealers and such other
books, accounts or documents relating to receipts or payments of any amounts by
the dealer or amounts received from dealers or payments made to dealers by such
other persons. Officer authorised may inspect,
examine, take copies of such books, accounts or documents produced by dealer or
such other person and make such enquiries from such dealer or such other
person, as may be necessary for the purpose of the Act:
PROVIDED that books, accounts and documents of a
period more than five years prior to the assessment year shall not be so
required, unless in any particular case, for reasons to be recorded, such
officer considers it necessary.
Explanation: For the purpose of this section,
following persons shall be deemed to carry on activities ancillary or
incidental to or in connection with the business of purchase or sale of goods
by dealers-
(i) brokers or canvassing agents who
themselves do not sell or purchase goods but act as mediators between selling dealer
and purchasing dealer in relation to sale or purchase of goods; or
(ii) transporters
or forwarding agents of goods who transport or forward goods belonging to
dealers; or
(iii) persons who fabricate
or manufacture any goods for dealers; or
(iv) persons
who receive or dispatch goods on behalf of dealers; or
(v) persons
who store any goods belonging to dealers; or
(vi) persons
who maintain and, or possess books, accounts or documents relating to business
of dealers; or
(vii) persons
who handle goods of dealers in any other capacity.
(2) Any
officer authorised under sub‑section (1) may
visit and enter the business place or places and office premises of dealers and
other persons mentioned in sub‑section (1) at all reasonable times with a
view to inspect books, documents and accounts maintained or goods held in
possession in the ordinary course of business by dealers or other persons
mentioned in sub‑section (1):
PROVIDED that no residential accommodation (not being
a place of business‑cum-residence) shall be entered into, inspected or
searched by such officer unless specially authorised
in this behalf by the Commissioner in writing.
(3) All
books, documents, and accounts maintained by any dealer or a person mentioned
in sub‑section (1) in the ordinary course of business, the goods in his
possession and his place of business or office premises or vessel or vehicle
shall be open to search and inspection at all reasonable times by officer authorised by the State Government under sub‑section
(1)
(4) If
the officer authorised under sub‑section (1)
while examining any books, accounts or documents or conducting search or
inspection under sub‑section (3) has reasonable grounds for believing
that any dealer is trying to evade liability for tax or other dues under this
Act and that anything necessary for the purpose of an investigation into his
liability may be found in any account, register or document he may seize such
account, register or document as may be necessary. The officer shall forthwith
grant a receipt for the same and shall be bound to return them to the dealer or
the person from whose custody they were seized, within a period of ninety days
from the date of seizure after having such copies or extracts taken therefrom as may be considered necessary, provided the
dealer or the aforesaid person gives a receipt in writing for the account,
register or document returned to him. The officer may, before returning the
account, register or documents, affix his signature and his official seal at
one or more places thereon, and in such case the dealer or the aforesaid person
will be required to mention in the receipt given by him the number of places
where the signature and seal of such officer have been affixed on each account,
register or document.
(5) Notwithstanding
anything contained in sub‑section (4), the officer seizing any account,
register or other document under that sub‑section may, for reasons to be
recorded by him in writing and with the prior approval of the Commissioner,
retain such account, register or document for such period not extending beyond
thirty days from the date of completion of all the proceedings under this Act
in respect of the years for which they are relevant as he deems necessary.
(6) An
officer conducting search or inspection under sub‑section (3)-
(i) shall have the power to seal the place
of business, vehicle or any box, almirah or other
receptacle found on such place of business or vehicle in which he has reason to
believe that any account, register or other documents or goods are kept or
contained, if the owner or other person in occupation or in‑charge of
such office, shop, godown, vessel, vehicle or box, almirah or other receptacle leaves the place or is not
available or fails or refuses to open it when called upon to do so;
(ii) where
the owner or other person in occupation or in‑charge of the office, shop,
godown, vessel or vehicle or the box‑almirah or other receptacle found in the place of business,
or vehicle is present but leaves the place or after an opportunity having been
given to him to do so, fails to open, as the case may be, such office, shop, godown vessel or vehicle or the box, almirah
or other receptacle may break open the same and prepare a list of the goods and
documents found therein.
(7) No
person shall tamper with any seal put under sub‑section (6).
(8) Any
officer empowered under sub‑section (1) while making search or inspection
under this section may require any dealer or the other person to give any
information likely to be in his possession in respect of such books, documents,
accounts or goods found at the time of search or inspection or seizure under
this section.
(9) The
officer who has made inspection or search or seizure of any books, accounts or
documents or investigation or an officer who has made investigations under this
section, on the basis of facts found, shall prepare a report in respect of such
inspection or search or seizure or investigation and where the officer
preparing the report is an officer different from the assessing authority, such
officer shall forward a copy of such report to the assessing authority of the
dealer:
PROVIDED that where the officer who has prepared
report referred to in this sub‑section, is of the opinion that liability
of payment of tax by the dealer in addition to liability of payment of tax
admitted by such dealer may exceed rupees one lakh,
such officer shall serve the dealer with a notice stating such facts to show
cause why adverse inference should not be drawn on the basis of such facts. The
dealer on receipt of such notice shall submit his reply to such officer two
copies along with evidence if any. If the officer issuing notice is an officer
other than the assessing authority, it shall forward to the assessing authority
a copy of report, a copy of show cause notice issued and a copy of reply
received from the dealer, if submitted by the dealer along with its comments on
the reply submitted by the dealer.
(10) The
provisions of sections 100 and 165 of Code of Criminal Procedure, 1973 shall,
as far as may be, apply in relation to any entry, or search or inspection under
this section, as they apply in relation to any inspection or search under the
said Code.
Explanation: In calculating the period specified in
sub‑section (4) the period during which proceedings under this Act remain
stayed under the orders of any Court or authority shall be excluded.
(1) The
assessing authority having jurisdiction over the dealer and officers authorized
to exercise powers under sub‑section (1) of section 45 may undertake tax
audit of the records, stock‑in‑trade and the related documents of
the dealer, who are selected by the Commissioner in the manner as may be
prescribed for the purpose.
(2) For
the purpose of the tax audit, officer empowered to make audit may require the
dealer to produce before him records and other documents in his office or at
such other public place as may be mentioned in the notice:
PROVIDED that where it is convenient, officer may take
up tax audit in the office, business premises or warehouse of the dealer.
(3) For
the purpose of tax audit under sub‑section (1) the Commissioner or any
other tax officer directed by him shall examine the correctness of return or
returns filed and admissibility of various claims including input tax credit.
(4) Where
tax audit is made by any officer other than the assessing authority of the
dealer, such officer shall send audit report prepared by it to the assessing
authority of the dealer.
(5) The
dealer shall extend necessary co‑operation in making tax audit.
47. Power
to seek information, to summon witness etc.
(1) For
the purpose of this Act, any officer under this Act, not being an officer below
the rank of Commercial Tax Officer Grade II, may require any dealer or other
person to furnish any information which may be, or is in his knowledge or
possession. Whenever so required, the dealer or such other person shall furnish
correct, complete and true information.
(2) All
officers under this Act shall have the same powers as are vested in a court
under the Civil Procedure Code, 1908, when trying a suit in respect of
following matters, namely:-
(i) Enforcing the attendance of any person
and examining him on oath or affirmation.
(ii) Compelling
the production of documents, and
(iii) Issuing
commission for the examination of witness; and any proceeding before any of the
officers aforesaid shall be deemed to be a judicial proceeding within the
meaning of sections 193 and 228 and for the purpose of section 196 of the
Indian Panel Code.
(3) Summons
for the production of documents or the attendance of any person shall be issued
in the prescribed form.
(1) Notwithstanding
anything contained in any provisions of this Act an officer authorised
under sub‑section (1) of section 45 shall have the powers to seize any
goods-
(i) which are found in a dealer's place of
business or vehicle or vessel or any other building or place; or
(ii) which,
such officer has reason to believe to belong to the dealer and which are found
in any place of business or vehicle or vessel or any other building or place,
but are not accounted for by the dealer in his accounts or registers or other
documents maintained in the ordinary course of his business:
PROVIDED that a list of all the goods seized under
this sub‑section shall be prepared by such officer and be signed by the
officer and not less than two respectable witnesses.
(2) Where
any officer empowered by the State Government in this behalf has reason to
believe that the goods found in any vehicle or vessel, building or place are
not traced to any bonafide dealer or that it is
doubtful if such goods are properly accounted for by any dealer in his
accounts, registers or other documents, maintained in the course of his
business, he shall have power to seize such goods, and the remaining provisions
of this section shall mutatis mutandis apply in relation to such seizure.
(3) An
officer seizing the goods under sub‑section (1) or sub‑section (2)
shall take all the measures necessary for their safe custody and forward the
list, referred to in the proviso to sub‑section (1), along with other
documents relating to the seizure to the assessing authority concerned, who
shall take action for the assessment of tax and imposition of penalty and for
the recovery thereof in accordance with the provisions of this Act.
(4) The
said assessing authority shall serve on the dealer or, as the case may be, the
person in‑charge of the goods at the time of seizure (hereinafter in this
section referred to as the person in‑charge) a notice in writing
requiring him to show cause, why a penalty should not be imposed.
(5) If
such authority, after taking into consideration the explanation, if any, of the
dealer or, as the case may be, the person in‑charge and giving him an
opportunity of being heard, is satisfied that the said goods were omitted from
being shown in the accounts, registers and other documents referred to in sub‑section
(1) or sub‑section (2), it shall pass an order imposing a penalty not
exceeding forty percent of the value of such goods, as he deems fit.
(6) A
copy of the order imposing penalty under sub‑section (4) shall be served
on the dealer or, as the case may be, the person in‑charge.
(7) The
officer seizing the goods shall serve on the dealer or, as the case may be, the
person in‑charge an order in writing mentioning the fact of such seizure
and indicating the amount, not exceeding such amount as would be sufficient to
cover the penalty to be imposed, and tax likely to be levied, on deposit
whereof in cash, the goods so seized may be released in favour
of the dealer or, as the case may be, the person in‑charge:
PROVIDED that amount of penalty likely to be levied
and the amount of tax likely to be assessed shall be shown separately:
PROVIDED FURTHER that the Commissioner or such other
officer, not below the rank of a Deputy Commissioner, as may be authorised in this behalf by the Commissioner, may, for
sufficient reasons to be recorded in writing, direct that the goods be released
without any deposit or on depositing such lesser amount, or furnishing security
in such nature other than cash, as he may deem fit.
(8) The
sum of penalty or such part thereof as remains after adjustment of any amount
deposited towards penalty under sub‑section (5) shall be deposited in the
prescribed manner within thirty days of the date of service of the copy of the
order imposing the penalty. In default, the assessing authority shall cause the
goods to be sold in such manner as may be prescribed and apply the sale
proceeds thereof towards the penalty imposed and tax assessed and, subject to
the provision of section 40, refund the balance, if any, to the dealer or, as
the case may be
(9) Where
the officer seizing the goods, before forwarding the list and other documents
referred to in sub‑section (2), or the assessing authority at any time
thereafter, is of the opinion that the goods are subject to speedy and natural
decay or where the tax assessed or penalty imposed, as the case may be, is not
deposited in accordance with the provisions of this Act, the officer seizing
the goods or the assessing authority, as the case may be, may, without prejudice
to any other action that may be taken in accordance with other provisions of
this Act, cause the goods to be sold by public auction in the prescribed
manner. The sale proceeds of such goods shall be adjusted towards the expenses
of tax assessed or penalty imposed. The balance, if any, shall be refunded to
the dealer or, as the case may be, the person in‑charge in accordance
with the provisions of sub‑section (7).
(10) If
the amount deposited under sub‑section (7) is more than the amount of
penalty imposed under sub‑section (4), and tax assessed tinder this Act
the excess amount so deposited shall be refunded to the dealer or, as the case
may be, the person in‑charge by the authority with whom it was so
deposited, in accordance with the provisions of section 40.
49. Establishment
of check‑posts and barriers
The State Government, if it is of opinion that it is
necessary so to do with a view to preventing evasion of tax or other dues
payable under this Act in respect of the sale of goods within the State after
their import into the State or in respect of goods that have been manufactured
by using goods so imported, may by notification in the Gazette, direct the
establishment of check‑posts or barriers at such places within the State,
as may be specified in the notification.
50. Import
of goods into the State by road against declaration
(1) Any
person (hereinafter in this section referred to as the importer) who intends to
bring, import or otherwise receive, into the State from any place outside the
State any goods other than the goods exempt from payment of tax on sale or
purchase of such goods under clause (a) of Section 12 in such quantity or
measure or of such value, as may be notified by the State Government in that
behalf, in connection with business, shall obtain the prescribed form of
declaration, on payment of the prescribed fee, from the assessing authority
having jurisdiction over the area his principal place of business is situated
or, in case there is no such place, where he ordinarily resides:
PROVIDED that where the importer intends to bring,
import or otherwise receive such goods otherwise than in connection with
business, he may, at his option, in the like manner obtain the prescribed form
of certificate.
(2) Where such
goods are to be consigned by road-
(a) the
importer shall furnish to the consignor the declaration in the prescribed form
in duplicate duly filled in and signed by him, and the driver or any other
person in‑charge of any vehicle carrying any such goods shall carry with
him the copies of such declaration duly verified by the consignor in the
prescribed manner with such other documents as may be prescribed, and shall
deliver one copy of such declaration,-
(i) where such goods are brought by a road
on which a check‑post or barrier is established under section 47 to the
officer‑in‑charge of such check‑post or barrier, and
(ii) where
such goods are brought by a road on which no check‑post or barrier is
established, to the officer‑in‑charge of the nearest check‑post
or barrier established under the said section before transporting such goods
further within the State, and other copy of declaration and the remaining
documents along with goods to importer or his agent.
(b) the
officer‑in‑charge of the check‑post or barrier grant a
receipt for the copy of declaration delivered to him and it shall not be
necessary for driver or the person in‑charge of the vehicle to deliver
any copy of the declaration at the other check‑post or barrier that he
may cross, if he shows such receipt to the officer‑in‑charge of the
check‑post or barrier.
(c) the
importer shall preserve the other copy of the declaration and other documents
delivered to him or to his agent under clause (a) for such period as may be
prescribed and produce them before the assessing authority whenever demanded by
it within such period.
(3) Where
such goods are brought into the State as personal luggage, the person bringing
them shall carry with him the declaration in the prescribed form duly filled in
and signed by the importer, and the importer shall submit the same for
endorsement by the officer authorised on this behalf.
(4) Where
any person intends to bring, import or otherwise receive into the State from
any place outside the State any goods referred to in sub‑section (1)
otherwise than in connection with business and obtains the prescribed form of
certificate, the provisions of sub‑sections (2), (3) and (4) shall
mutatis mutandis apply as if the word certificate were substituted for the word
declaration used therein.
(5) The
driver or other person‑in‑charge of any vehicle carrying any goods
referred to in the preceding sub‑sections shall stop the vehicle at every
such check‑post or barrier or, when so required by an officer authorised under sub‑section (1) of section 45, at
any other place, and keep it stationary for so long as may be considered
necessary by the officer‑in‑charge of the check‑post or
barrier or officer authorised under sub‑section
(1) of section 45, as the case may be, and allow him to search the vehicle and
inspect the goods and all documents referred to in the preceding sub‑section
and shall, if so required, give his name and addresses and the names and
address of the owner of the vehicle and of the consignor and the consignee of
the goods.
(6) Where
the officer making the search or inspection under this section finds any person
transporting or attempting to transport any goods to which this section applies
without being covered by the proper and genuine documents referred to in the
preceding sub‑section and if, for reason to be recorded, he is satisfied,
after giving such person an opportunity of being heard, that such goods were
being so transported in an attempt to evade assessment or payment of tax due or
likely to be due under this Act, he may order detention of such goods.
(7) The
provisions of sub‑sections (3), (7) and (9) of section 48 shall mutatis
mutandis apply to goods detained under sub‑section (6), as they apply to
goods seized under that section.
(8) Where
the assessing authority or an officer empowered under this section, is
satisfied that any dealer bringing or importing or otherwise receiving into the
State from any place outside the State, any goods has, with a view to evade
payment of tax, shown the estimated sale value of such goods in the
"declaration form for import" accompanying such goods less than the
fair price of such goods or has not shown the estimated sale value in such form
and the presumed sale value of such goods is less than the fair price of such
goods, such authority or officer may acquire such goods on payment of 105 per
centum of each estimated sale value or presumed sale value, as the case may be,
to the dealer.
(9) The
power of sub‑section (8) shall not be exercised unless the dealer is
afforded an opportunity of being heard.
(10) For
the purpose of sub‑section (9), the notice printed on the declaration
form shall be deemed to be a notice for the purpose of sub‑section (8)
and no fresh notice shall be required to be given for hearing to the dealer.
(11) The
goods acquired under sub‑section (8) shall be disposed of in such manner
as may be specified by the Commissioner.
Explanation: For the purpose of sub‑section
(8)-
(i) "Fair price" shall mean the
value, determined in such manner as may be specified by the Commissioner.
(ii) "Presumed
sale value" shall be equal to 110 per centum of the purchase price shown
in the declaration form.
51. Import
of goods into the State by rail, river, air or post
(1) Where
any goods other than the goods exempt from payment of tax on sale or purchase
under clause (a) of section 12, are consigned by rail, river, air or post from
a place outside the State for delivery to a dealer inside the State, the
importer shall-
(a) obtain
or cause to be obtained delivery thereof unless he furnishes or causes to be
furnished to such officer as may be authorised in
this behalf by the State Government a declaration in the form prescribed under
clause (a) of sub‑section (2) of section 50 in duplicate duly filled in
and signed by him for endorsement by such officer; and
(b) after
taking delivery, carry goods away or cause the goods to. be carried away from
the railway station, steamer or boat station, or air port or post office, as
the case may be, unless a copy of the declaration duly endorsed by such officer
is carried with goods.
(2) Where
any taxable goods are brought into the State by rail, river or air as personal
luggage, the person bringing them shall carry with him the declaration in the
prescribed form duly filled in and signed by the importer, and the importer
shall submit the same for endorsement by the officer referred to in sub‑section
(1) by the next working day before the officer authorized in that behalf.
(3) Where
any person intends to bring, import or otherwise receive into the State from
any place outside the State by rail or river or air or post any taxable goods
otherwise than in connection with business and obtains the from of certificate
prescribed under sub‑section (2) of section 50, the provisions of sub‑sections
(1) and (2) shall mutatis mutandis apply as if word "Certificate" is
substituted for the word declaration used therein.
(4) Where
an officer making inspection, search finds any consignment of taxable goods in
respect of which declaration before the prescribed authority has not been made
in the manner prescribed under this section and if after giving reasonable
opportunity of being heard to the person in‑charge of the goods at the
time of inspection of goods or the owner of the goods as the case may be, is
satisfied that any taxable goods are being imported in an attempt to evade
payment of tax under this Act, he may after recording such reasons, may detain
such goods. Provisions under section 48 shall mutatis mutandis apply to such
detention of goods as they apply to goods seized under that section.
52. Issue
of authorisation for
transit of goods through the State
(1) The
driver or person in‑charge of a vehicle carrying taxable goods, consigned
from a place outside the State and consigned to a place outside the State, the
driver or other person in‑charge of such vehicle shall obtain, in the
prescribed manner and in prescribed form, an authorisation
for transit of goods through the State, in two copies from the officer in‑charge
of the first check‑post or barrier (hereinafter referred to as entry
check‑post) after entry of goods into the State but before crossing the
entry check‑post and shall produce it in duplicate along with goods
mentioned in such authorisation for transit before
the officer in‑charge of the check‑post or barrier (hereinafter
referred to as exit check‑post) prior to his exit from the State and
obtain a copy of such authorisation for transit of
goods duly endorsed by the officer in‑charge of the exit check‑post,
failing which it shall be presumed that the goods carried thereby have been
sold within the State by the owner or person in‑charge of such vehicle:
PROVIDED that where the goods carried by such vehicle
after obtaining authorisation for transit outside the
State are transported outside the State by any other vehicle subject to the
provisions under sub‑sections (2), (3), (4) and, (5) of section 16, the
onus of proving that the goods have actually been moved out of State shall be
on the owner or person in‑charge of the vehicle who has obtained authorisation for transit.
(2) Where
any goods consigned from any place outside the State are brought into the State
at any place by railway or air or post or steamer for transport outside the
State by road, the driver or person in‑charge of vehicle carrying goods
from railway station or airport or post office or steamer station, as the case
may be, to the place outside the State shall obtain authorisation
for transit in duplicate in prescribed manner and in prescribed form from the
assessing authority in whose jurisdiction such railway station or airport, or
post office or steamer or boat station is situated, and shall produce it along
with goods before the officer incharge of the exit
check‑post for endorsement, failing which it shall be presumed that the
goods have been sold by the owner or the person in‑charge of the vehicle,
inside the State.
(3) Where
any goods are brought from a place outside the State by road and after entry of
such goods into the State, the same are to be transported to a place outside
the State either by railway or airway or by post or by river, the driver or
person in‑charge of the vehicle, while obtaining authorisation
for transit from entry check‑post shall state the fact to this effect in
the application for obtaining authorisation for
transit. The driver or the person incharge of such
vehicle shall also mention the authority before whom after handing over goods
to railway or airway or post office or steamer or boat copies of authorisation for transit along with copy of goods receipt
is to be produced for endorsement on them. For this purpose office of assessing
authority having jurisdiction over area in which such railway station or airport
or post office or steamer station is situated shall also be deemed to be the
exit check‑post.. Officer‑in‑charge of the entry check‑post
after making such enquiry as he deems fit shall issue authorisation
for transit. After handing over goods to railway or airway or post office or
steamer or boat, as the case may be, two copies of authorisation
for transit along with goods receipt issued by railway or airport authority or
post‑office or steamer owner and xerox copy of
the same shall be produced before the officer‑in‑charge of the exit
check‑post mentioned in the authorisation for
transit for endorsement on them, failing which it shall be presumed that the
goods have been sold inside the State by the owner or the person in‑charge
of such vehicle.
(4) Where
goods are carried from a place outside the State for delivery at a place inside
the State but during transit the vehicle carrying such goods after entry into
the State has to leave the State one or more times, driver or the person in‑charge
of the vehicle shall obtain authorisation for transit
of goods each time he enters and leaves the State. For each such fragment of
journey, provisions of sub‑section (1) shall be applicable. In such a
case the driver or person in‑charge of the vehicle shall carry with him
the declaration for import of goods along with other documents:
PROVIDED that in such a case original copy of
declaration shall be collected at the check‑post where vehicle enters
finally inside the State.
(5) With
a view to prevent evasion of tax on sales of goods inside the State in the garb
of authorisation for transit of goods, the officer in‑charge
at the entry check post, other officers authorised
under sub‑section (1) of section 45 and sub‑section (1) and sub‑section
(2) of section 48 of the Act, and officer‑in‑charge of the exit
check‑post shall be empowered to inspect and seize the goods if the same
are found materially different from the goods stipulated in the authorization
for transit of goods. Officer‑in‑charge of exit check‑post shall
have power to inspect the goods under this section with a view to ensure the
very goods for which authorisation for transit was
obtained, are being carried out side the State:
PROVIDED that during inspection of goods under sub‑section5
if officer‑in‑charge c)f entry check‑post after inspection of
goods is of the view that goods are according to the quantity or measure
disclosed in the application for authorisation for
transit but disclosed value of such goods is too low and is not worthy of
credence he can estimate the fair market value of such goods and put a note in
this regard on the authorisation for transit.
In such a case if driver or person in‑charge of
the vehicle fails to produce goods described in the authorisation
for transit before any other officer making inspection under this section,
estimated value of goods shall be deemed actual value of goods for all purposes
under this Act:
PROVIDED FURTHER that difference due to quality of
goods shall not be deemed to be material difference for the purpose of seizure
of goods under this sub‑section.
(6) In
respect of goods seized under the provisions of this section provisions of sub‑sections
(3) to (10) of section 48 shall mutatis mutandis apply.
(7) In
a case in which vehicle has been hired by a transporter only up to a place
inside the State for carrying goods and the driver or the person in‑charge
of vehicle does not own responsibility of taking goods outside the State, the
officer at the entry check‑post in appropriate cases may require security
to be furnished in the interest of revenue, before issuing authorisation
for transit of goods. The amount of security demanded under this sub‑section
shall not exceed the tax payable on the value of such goods. In cases where
disclosed value is much low in comparison to market value of such goods, an
amount of security shall be computed on the basis of market value of such
goods. Security demanded under this sub‑section may be furnished by
recipient of such goods inside the State or by the transporter who has hired
the vehicle, if such person undertakes responsibility of carrying goods outside
the State. In such a case in which security has been accepted, the Officer‑in‑charge
of the Entry Check‑Post shall put a note to this effect on all copies of authorisation for transit and as soon as the vehicle
carrying such goods passes the Exit Check‑Post, after producing the authorisation for transit, before Officer‑in‑charge
of the Exit Check‑Post, such officer shall communicate the fact by speedy
mode of communication to the Officer‑in‑charge of the entry check
post. The Officer‑in‑charge of Entry Check‑Post on receipt of
such information shall return/refund the security to the person or the
transporter from whom the same was accepted.
(8) In
case of a vehicle whose driver or person in‑charge has earlier obtained authorisation for transit of any goods and information has
been received in respect of such authorisation for
transit that the same has not been produced before the Officer in‑charge
of the exit check‑post along with the goods mentioned in it, if the
driver of person in‑charge of such vehicle requests for issue of transit authorisation in respect of some different goods on some
other occasion, the officer‑in‑charge of the entry checkpost may require the driver or the person in‑charge
of the vehicle to furnish security in the interest of revenue for issue of authorisation for transit as provided in sub‑section
(7) above, and remaining provisions of sub‑section (7) in respect of such
security, shall mutatis mutandis apply.
53. Power
to seek assistance from police etc.
An officer exercising power under the provisions of
section‑ 45 or section‑ 48 or section‑ 50 or section‑51
or section 52 and section‑81, may take the assistance of police or other
officers or officials of the State.
(1) Any
person who-
(a) fails
to pay without reasonable cause within the time allowed the tax assessed on him
under this Act; or
(b) being
liable to pay tax under this Act, carries on business as a dealer without
applying for registration under and in accordance with section 17; or
(c) refuses
to permit or refuses or neglects to produce for inspection or examination any
book, document or account, or refuses to display material in a computer or in a
computer floppy or refuses to allow copies or printout of the material in a
computer or its floppy to be taken in accordance with the provisions of Section
45; or
(d) fails
to issue a Tax Invoice or sale invoice or bill or cash‑memo or fails to
issue a transport memo or challan or transfer invoice
in accordance with the provisions of this Act; or
(e) closes
or leaves place of business or being a driver or person in‑charge of a
vehicle carrying goods leaves the vehicle with a view to prevent inspection
under this Act or the rules made thereunder,
shall without prejudice to his liability under any
other law for the time being in force, and in addition to recovery of tax or
any other dues payable by him under this Act, on conviction, be punishable with
fine which may extend to five thousand rupees, and where the default is
continuing one, to a further fine which may extend to one hundred rupees for
every day after the first day during which the default continues:
PROVIDED that in the event of a second or subsequent
conviction under clause (a) of this sub‑section, a minimum punishment to
be awarded shall be a fine of three thousand rupees or the amount of tax
involved, whichever is less.
(2) Notwithstanding
anything contained in sub‑section (1), any person who willfully-
(a) submits
a false return of turnover under this Act; or
(b) being
liable to pay the tax under this Act, fails to submit, without reasonable
cause, return of his turnover under the provisions of this Act or the rules
made thereunder or fails to deposit the tax before or
along with the return in accordance with the provisions of this Act; or
(c) maintains
or produces false accounts, registers or documents; or
(d) issues
or furnishes a false or wrong certificate or declaration, prescribed either
under the Act, or any rule made or notification issued thereunder,
by reason of which a tax on sales or purchases ceases to be leviable
either in whole or in part; or
(e) makes
a false verification or declaration on an application for registration or in
connection with any other proceeding under this Act; or
(f) evades
payment of the tax which he is liable to pay under this Act; or
(g) obstructs
or prevents an officer empowered under this Act from performing any of the
functions under this Act or the rules made thereunder;
or
(h) tampers
with any seal put under sub‑section 6 of section 44; or
(i) demands or charges on the sale or
purchase of any goods any amount of tax in contravention of provisions of this
Act; or
(j) refuses
or neglects to furnish any information which may be in his knowledge or
possession and which he has been required to furnish for the purpose of this
Act, or furnishes information which is false in any material particular; or
(k) carries
on or continues to carry on business as a dealer without furnishing the
security demanded under section 19 of the Act; or
(1) issues
a false sale invoice or bill or cash memo without sale of goods shown in such
sale invoice or bill or cash memo; or
(m) issues
a false transport memo or challan or transfer invoice
without dispatch or delivery of goods shown in such transport memo or challan or transfer invoice; or
(n) receives
a false purchase invoice or bill or cash memo from a dealer without purchase of
goods shown in such purchase invoice or bill or cash memo; or
(o) receives
a transport memo or challan or transfer invoice
without receipt of I goods shown in
such transport memo or challan or transfer invoice;
or
(p) uses
or furnishes a prescribed form of declaration or certificate which has not been
obtained by him or his authorised agent from the
prescribed authority in the prescribed manner; or
(q) transfers
a prescribed form of declaration or certificate to any other dealer or person
except for lawful purposes; or
(r) receives
or possesses a prescribed form of declaration or certificate which has not been
obtained in accordance with the provisions of this Act or the rules made thereunder; or
(s) fails
to obtain authorisation for transit of goods through
the State as provided under section 50 and also fails to prove that the goods
are meant for delivery outside the State; or
(t) having
obtained authorisation for transit of goods through the
State-
(i) having taken responsibility to carry
out goods outside the State, fails to prove that the same has been carried
outside the State; or
(ii) having
taken responsibility to hand over such goods to a bonafide
person for carrying them outside the State, fails to, prove that the goods were
handed over to a bonafide person; or
(u) having
received any goods mentioned on an authorisation for
transit through the State for carrying them outside the State fails to prove
that the goods have been carried outside the State; or
(v) being
a transporter or forwarding agent prepares any documents relating to any goods
showing that the goods have been received for transporting them to a place
outside the State fails to prove that the same have been carried outside the
State; or
(w) being
owner of a vehicle whose driver or person in‑charge receives inside the
State any goods mentioned on an authorisation for
transit through the State fails to prove that the goods have been transported
outside the State; or
(x) imports
or transports or abets to import or transport any taxable goods through road
but fails to disclose particulars of any goods as provided under section 50 of
this Act before the officer‑in‑charge of a check‑post or
before an officer empowered under sub‑section (1) of section 45; or
(y) claims
an input tax credit on the basis of false purchase invoice or bill or cash‑memo;
or
(z) participates
in an unlawful assembly with a view to prevent or obstruct an officer from
performing his functions or discharging his duties under this Act, or otherwise
misbehaves with or threatens an officer; or
(aa) produces a false or forged proof of
deposit of any amount of tax or fee, or penalty or any sum due under this Act,
,
shall, without prejudice to his liability under any
other law for the time being in force and in addition to recovery of tax or any
other dues payable by him under this Act, on conviction be punishable with
simple imprisonment which may extend to one year or with fine, or both and
where default is a continuing one, to a further fine which may extend to Rupees
100 (one hundred) for every day after the first day during which the default
continues:
PROVIDED that in the event of second or subsequent
conviction the minimum punishment to be awarded shall be simple imprisonment
for a term of three months.
(3) No
court shall take cognizance of any offence under this Act or under the rules
made thereunder except with the previous sanction of
the Commissioner, and no Court inferior to that of a Magistrate of 1st class
shall try any such offence.
(4) All
offences under this section shall be cognizable and bailable.
(1) If
the person committing an offence under this Act is a company, the company as
well as every person in‑charge of, and responsible to the company for the
conduct of its business at the time of commission of the offence shall be
deemed to be guilty of the offence and shall be liable to be proceeded against
and punished accordingly:
PROVIDED that nothing contained in this sub‑section
shall render any such person liable to any punishment if he proves that the
offence was committed without this knowledge or that he exercised all due
diligence to prevent the commission of such offence.
(2) Notwithstanding
anything contained in sub‑section (1), where an offence under this Act,
has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or that the commission of the
offence is attributable to any neglect of any other officer of the company,
such director, manager, managing agent or such other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against
and be punished accordingly.
Explanation: For the purpose of this section.-
(a) "company"
means any body corporate and includes a firm or other association of
individuals; and
(b)
"Director" in
relation to a firm means a partner in the firm.
56. Penalties
in certain cases
(1) If the
assessing authority is satisfied that any dealer or other person
(a)
(i) has
without reasonable cause failed to deposit the tax due under this Act or an
amount referred to in sub‑section (1) of section 43, for any tax period
within the time prescribed or allowed and in the prescribed manner; or
(ii) having
deposited the tax due under this Act, within the time prescribed or allowed for
any tax period, has without reasonable cause failed to submit the return in the
prescribed manner of such tax period; or
(b) has
submitted false return of his turnover under this Act; or
(c)
has concealed
particular of his turnover or has deliberately furnished inaccurate particulars
of such turnover; or
(d)
has maintained or
produced false accounts, registers or documents; or
(e) has
without reasonable cause failed to pay, within the time allowed, the tax due
from him; or
(f) fails
to issue a Tax Invoice or sale invoice or bill or cash‑memo in accordance
with the provisions of this Act; or
(g) has
failed to issue a challan or transfer invoice or
transport memo in respect of dispatch or delivery of goods in accordance with
the provisions of this Act; or
(h) (i) being
liable for registration under this Act has failed to apply in the prescribed
manner and within the prescribed time; or
(ii) being
liable for registration carries on or continues to carry on business beyond
thirty days from the date on which he becomes liable to obtained registration
without applying for registration or without furnishing the security demanded
for grant of registration; or
(i) refuses to permit or refuses or
neglects to produce for inspection or examination any book, document or
account, or refuses to allow copies to be taken in accordance with the
provisions of section 45; or
(j) obstructs
or prevents an officer empowered under section 45 or the officer‑in‑charge
of a check‑post or barrier established under section‑49 from
performing any of his functions under this Act; or
(k) refuses
or neglects to furnish any information, which may be in his knowledge or
possession and which he has been required to furnish for the purposes of this
Act, or furnishes information which is false in any material particulars; or
(1)
(i) issues
or furnishes a false or wrong certificate or declaration prescribed either
under the Act, or under any rule made or any notification issued thereunder, by reason of which a tax on sales or purchases,
ceases to be leviable, whether in full or in part; or
(ii) issues
a Tax Invoice or sale‑invoice or bill or cash‑memo without sale of
goods; or
(iii) issues
a transport memo or challan or transfer invoice
without dispatch or delivery of goods; or
(iv) receives
a Tax Invoice or sale‑invoice or bill or cash‑memo without
purchasing of goods mentioned in such document; or
(v) receives
a transport memo or challan or transfer invoice
without receipt of goods; or
(m)
(i) makes
use of a prescribed form of declaration or certificate which has not been
obtained by him or by his principal or agent in accordance with the provisions
of this Act or the rules made thereunder; or
(ii) transfers a prescribed declaration form
or certificate to any other person except
for lawful purposes under the provisions of this Act or the rules made thereunder; or
(iii) receives
or possesses a prescribed declaration form or certificate which has not been
obtained in accordance with the provisions of this Act or the rules made thereunder; or
(n)
(i) closes
or leaves place of business with a view to prevent inspection under this Act or
the rules made thereunder; or
(ii) being
a driver or person in‑charge of vehicle leaves the vehicle with a view to
prevent inspection of goods loaded on it under any provisions of this Act or
rules made thereunder; or
(iii) does
not stop the vehicle carrying taxable goods when so required by an officer
empowered to inspect goods under this Act or the rules made thereunder;
or
(o)
(i) imports
or attempts to import or abets the import of any goods, in contravention of the
provisions under section 50 or section 51 with a view to evade payment of tax
on sale of such goods or if goods are for use in manufacturing or processing of
goods for sale with a view to evade payment of tax on sale of such manufactured
goods; or
(ii) transports
or attempts to transport or abets the transport of any taxable goods in
contravention of any provisions of this Act; or
(p)
(i) fails
to obtain authorisation for transit of goods through
the State and also fails to prove that goods are meant for delivery to dealers
or others persons outside the State; or
(ii) fails
to obtain authorisation for transit but proves that
goods are meant for delivery to dealers or other persons outside the State; or
(iii) having
not taken responsibility of taking goods outside the State, after obtaining authorisation for transit of goods fails to prove that such
goods were handed over to a bonafide transporter
inside the State for taking them outside the State; or
(iv) being
a transporter or forwarding agent who receives any goods from driver or person
in‑charge of a vehicle for carrying them outside the State but fails to
prove that goods have been carried outside the State; or
(v) being
driver or person in‑charge of a vehicle or such transporter who receives
goods inside the State for carrying them outside the State, fails to produce
copies of authorisation for transit of goods along
with goods before the officer‑in‑charge of the exit check‑post
but proves that goods have been carried outside the State; or
(vi) being
a transporter or hirer of a vehicle has prepared documents showing the
destination of goods to a place outside the State, but fails to prove that
after obtaining authorisation for transit from
officer‑in‑charge of the entry check‑post, goods have been
carried outside the State; or
(q) (i) being
registered dealer realises any amount as tax or in
the name or colour of tax under this Act, which is
not payable by him in respect of goods sold or purchased; or
(ii) being
an unregistered dealer realises any amount as tax or
any amount in the name or colour of tax under this
Act, on any sale or purchase of goods; or
(iii) being a dealer who is liable to obtain
registration and has applied for grant of registration, but his
application for registration is pending for disposal, charges separately from
purchaser an amount as tax under this Act; or
(r) fails
to keep stationary a vehicle for inspection of goods and/or for search of such
vehicle; or
(s) makes
a false verification or declaration on an application for registration or in
connection with any other proceedings under this Act; or
(t) does
not maintain books, accounts, documents in the prescribed manner; or
(u) wrongly
claims an amount as input tax credit; or
(v) carries
or transports goods without filling details in relevant columns on a transport
memo or challan or transfer invoice, time of movement
of vehicles and particulars of goods receipt, etc.; or
(w) produces
a false proof of deposit of any amount of tax or fee, or penalty or any sum due
under the Act, or
(x) claims
an input tax credit on the basis of false purchase invoice or bill or cash‑memo;
or
(y) provokes
or invites other person or persons with a view to prevent an officer from
discharging his duties under the Act or participates in an unlawful assembly
with a view to prevent an officer from discharging his duties under the Act, or
otherwise misbehaves with or threatens any officer; or
(z)
otherwise acts in
contravention of the provisions of this Act or rules made thereunder.
It may, after such enquiry, if any, as it may deem necessary, direct that such
dealer or person shall pay, by way of penalty in addition to the tax if payable
by him, an amount according to the 'Table' given below
|
Sr. No. |
Clause |
Sub-clause |
Amount
of Penalty |
|
1 |
2 |
3 |
4 |
|
1 |
(a) |
(i) |
(i) sum not less
than ten Percent but not exceeding twenty five percent of the amount of tax
payable where amount of tax payable does not exceed ten thousand rupees. |
|
|
|
|
(ii) sum not less than ten percent but not
exceeding fifty percent of the amount of tax payable where amount of tax
payable exceeds ten thousand rupees. |
|
|
|
(ii) |
An amount not exceeding rupees two thousand. |
|
2 |
(b) |
|
sum not exceeding three times of the amount
of tax involved. |
|
3 |
(c) |
|
a sum not less than one hundred percent of
tax but not exceeding three times of the amount of tax treating the turnover
concealed liable to tax. |
|
4 |
(d) |
|
a sum not less than fifty percent of the amount of tax but not
exceeding three times the amount of tax treating the turnover concealed
liable to tax. |
|
5 |
(e) |
|
(i) a sum not less than ten percent but not
exceeding twenty five percent of the amount of tax payable where amount of
tax does not exceed ten thousand rupees; and |
|
5 |
(e) |
|
(i) a sum not less
than ten percent but not exceeding twenty five percent of the amount of tax
payable where amount of tax does not exceed ten thousand rupees; and |
|
|
|
|
(ii) a sum not less than ten percent but not
exceeding fifty percent of the amount of tax where amount of tax payable
exceeds ten thousand rupees. |
|
6 |
(f) |
|
a sum not exceeding three times of the amount
of tax or forty percent of the value of goods whichever is higher. |
|
7 |
(g) |
|
a sum not exceeding three times of the amount
of tax or forty percent of the value of goods whichever is higher. |
|
8 |
(h) |
(i)
and (ii) |
a sum of rupees one hundred for each month or
part thereof for default during the first three months and rupees five
hundred for every month or part thereof after the first three months during
which the default continues. |
|
9 |
(i) |
|
a sum not exceeding five thousand rupees |
|
10 |
(j) |
|
a sum not exceeding ten thousand rupees |
|
11 |
(k) |
|
a sum not exceeding five thousand rupees |
|
12 |
(1) |
(i)
or (ii) or (iii) or (iv) or(v) |
a sum not exceeding three times of tax
treating the value of goods as taxable turnover of goods or forty percent of
the value of goods whichever is higher. |
|
13 |
(m) |
(i)
or (ii) or |
(i) if value of
goods is mentioned on such form of declaration or certificate a sum equal to
three times of the amount of tax treating the turnover of goods liable to tax
or forty percent of the value of goods mentioned on it, whichever is higher. |
|
|
|
|
(ii) if form of declaration or certificate is
blank a sum of fifty thousand rupees |
|
14 |
(n) |
(i)
or (ii) or (iii) |
a sum not exceeding five thousand rupees |
|
15 |
(o) |
(i)
or (ii) |
a sum not exceeding three times the amount of
tax involved or forty percent of value of goods whichever is higher. |
|
16 |
|
(ii) |
a sum not exceeding two thousand rupees. |
|
|
(p) |
(i)
or (iii) or (iv) or (v) or(vi) |
a sum not exceeding three times of the amount
of tax treating the value of goods taxable turnover or forty percent of the
value of goods whichever is higher. |
|
17 |
(q) |
(i)
or (ii) or (iii) |
a sum not exceeding three times of the amount
of tax realized. |
|
18 |
(r) |
|
A sum not exceeding ten thousand rupees. |
|
19 |
(S) |
|
A sum not exceeding ten thousand rupees. |
|
20 |
(t) |
|
A sum not exceeding two thousand rupees. |
|
21 |
(u) |
|
a sum not exceeding an amount equal to three
times of amount of input tax credit. |
|
22 |
(v) |
|
A sum not exceeding two thousand rupees. |
|
23 |
(w) |
|
a sum of ten thousand rupees or three times
of amount shown deposited whichever is higher |
|
24 |
(x) |
|
a sum of ten thousand rupees or forty percent
of value of goods shown on false purchase invoice or bill or cash memo whichever is higher |
|
25 |
(Y) |
|
A sum not exceeding ten thousand rupees. |
|
|
(z) |
|
A sum not exceeding two thousand rupees. |
Explanation:
(I) The assessing authority includes an officer not below the rank of
an officer appointed and posted by the Commissioner Commercial Tax, at a check‑post
or an officer competent to exercise powers under sections 44,45, 46, 48, 49 and
50 of the Act.
(II) For the
purposes of this section where amount of penalty is to be determined on the
basis of turnover of goods, value of goods shown or found, as the case may be,
shall be deemed to be turnover of taxable goods and relating to taxable sale or
purchase.
(III)For the purposes of clauses (1), value of
goods written on such documents and if value is not written then market value
of goods, shall be deemed the turnover of sales or purchases of taxable goods
relating to taxable sale or purchase.
(2) A copy
of the order passed under sub‑section (1) shall be served on the dealer
or person concerned and the amount imposed by way of penalty shall be deposited
by such dealer or person in the prescribed manner within thirty days of such
service, failing which it may be recovered in the manner provided under section
33.
(3) No
order shall be made under sub‑section (1) unless the dealer or other
person concerned has been heard or has been given a reasonable opportunity of
being heard.
(4) No
prosecution under section 54 shall be instituted in respect of the same facts
on which a penalty imposed under this section has been paid in addition to the
tax due.
(5) The
provisions of this section shall mutatis mutandis be applicable to the
executor, administrator and the legal representative referred to in section 53.
(6) Where any penalty order passed by
assessing authority either under this section or any other section of this Act,
is quashed by any authority or Court in exercise of powers vested in it on the
ground-
(i) show cause notice issued to dealer or
any other person is not in accordance with the provisions of this Act or for
any other reason such notice is defective; or
(ii) penalty order has been passed quoting
wrong section of the Act; assessing authority may pass fresh order of penalty
after issuing proper notice, in the proper section of the Act, within one year
from the date of receipt of order quashing such earlier order.
(7) Where in case of a sick unit any penalty
order has been passed exparte and appeal has not been
filed against such order, if the State Government issues directions to the
assessing authority to set aside such order and to pass fresh order of penalty,
assessing authority may pass such fresh order of penalty within a period of one
year from the date on which it receives the order or directions from the State
Government.
The assessing
authority may accept from any person who has committed or is reasonably
suspected of having committed an offence under this Act, by way of composition
of such offence-
(a) where the offence consists of failure to
pay any tax recoverable under this Act, a sum of money not exceeding double the
amount of tax in addition to the tax so recoverable;
(b) where the offence consists of an evasion
of any tax recoverable under this Act, a sum of money not exceeding Rupees 5000
(five thousand) or triple the amount of tax recoverable whichever is greater in
addition to the amount of the tax recoverable;
(c) where the offence consists of import or
transport or abetment to import or transport of any goods in contravention of
the provisions of section 48, a sum of money not less than the amount of tax
involved under any of the provisions of this Act but not more than three times
of the amount of such tax or forty percent of the value of goods involved
whichever is higher;
(d) in other cases a sum exceeding five
thousand rupees.
Explanation: For
the purpose of this section assessing authority includes an officer not below
the rank of an officer appointed and posted by the Commissioner Commercial Tax
at a check‑post.
58.
Review by assessing authority and
power to grant stay
(1) Where in any assessment order amount of
tax has been assessed in excess of amount of tax admitted by the dealer due to
non‑submission of any prescribed forms of declaration or certificates
prescribed either for exemption from tax or for reduction in rate of tax, and
if on the application of the dealer for extension of time for submitting such
forms or certificates time for submitting the same could not be extended, due
to any reason by the assessing authority before passing such assessment order,
the assessing authority on the application of the dealer may review such
assessment order once during a period of nine months from the date of service
of such order on the dealer to allow the benefit of
such declaration forms or certificates as are submitted within six months from
the date of service of order subject to following conditions:-
(i) The dealer informs in writing to the assessing authority within
thirty days from the date of service of such order on him that he wishes to
submit any of such form of declaration or certificates within six months from
the date of service of order on him.
(ii) The dealer furnishes an affidavit to the effect that
he has not filed an appeal against the assessment order.
(iii) The dealer
furnishes security of disputed amount of tax to the satisfaction of assessing
authority.
(iv)The dealer has deposited admitted tax within
thirty days from the date of service of order on him, and
(v) Forms of declaration or
certificates submitted by the dealer are found in order.
(2) Where any dealer has fulfilled conditions referred to
in under clauses (j), (ii), (iii) and (iv) of sub‑section (1), the
assessing authority may stay the recovery of disputed amount of tax till the
disposal of review application.
59. Appeal
(1) Any dealer or other person aggrieved by an order made
by the Assessing Authority, other than an order mentioned in section 65 or sub‑section
(7) of section 48, may, within thirty days from the date of service of the copy
of the order, after serving a copy on the Assessing Authority or the State
representative, as the case may be, appeal to such authority as may be
prescribed.
(2) Where an appeal under this section has been filed by
any dealer or any other person against an order referred to in sub‑section
(1) and whereby due to filing of such appeal the Commissioner can not proceed
with revising such order passed by assessing authority on the point of legality
or propriety of such order under section 60, the Commissioner may apply to the
appellate authority to examine the legality and propriety of such order on such
point or points as may be mentioned in the application. A copy of such petition
shall be served on the dealer or such other person and shall be decided along
with the appeal filed by the dealer or other person by a common judgment. Such
application shall be treated cross appeal to appeal filed by the dealer or any
other person:
PROVIDED that no application for examination of legality and propriety
under this sub‑section shall be entertained after the disposal of appeal
filed by the dealer or other person, as the case may be:
PROVIDED FURTHER where the Commissioner under this
section has filed an application, dealer or other person shall not be entitled
to withdraw appeal filed by him.
Explanation: For the purpose of this sub‑section
Commissioner includes an officer authorised to file
appeal on behalf of Commissioner before the Tribunal under section 61 of this
Act.
(3) No
appeal against an assessment order under this Act shall be entertained unless
the appellant has furnished satisfactory proof of the payment of the amount of
tax or fee due under this Act on the turnover of sales or purchases, or both,
as the case may be, admitted by the appellant in the returns filed by him or at
any stage in any proceedings under this Act, whichever is greater.
(4) The
appeal shall be in the prescribed form and shall be verified in the prescribed
manner (5) The Appellate Authority may, after calling for and examining the
relevant records and after giving both parties a reasonable opportunity of being
heard or, as the case may be-
(a) in the
case of an order of assessment and penalty-
(i) confirm or annul such order; or
(ii) vary
such order by reducing or enhancing the amount of assessment or penalty, as the
case may be, whether such reduction or enhancement arises from a point raised
in the grounds of appeal or otherwise; or
(iii) set
aside the order and direct the Assessing Authority to pass a fresh order after
such inquiry as may be specified; or
(iv) direct
the Assessing Authority to make such inquiry and to submit its report within
such time as may be specified in the direction or within such extended time as
it may allow from time to time, and on the expiration of such time the
Appellate Authority may, whether the report has been submitted or not decide
the appeal in accordance with the provisions of the preceding sub-clause; or
(b) in
the case of any other order confirm, cancel or vary such order or set aside the
order and direct the Assessing Authority to pass a fresh order after such
inquiry as may be specified:
PROVIDED that subject to second proviso to sub‑section
(2) nothing in this sub‑section shall preclude the Appellate Authority
from dismissing the appeal at any stage with such observations as it deems fit
where the appellant applies for withdrawal of the same and no request for
examination of legality or propriety has been made by the Commissioner,
(6) The
Appellate Authority, may, on the application of the applicant and after giving
the Commissioner a reasonable opportunity of being heard stay the realisation of the amount of tax, fee or penalty payable by
the appellant till the disposal of the appeal:
PROVIDED that where an order under appeal does not
involve any dispute about tax, fee or penalty, Appellate Authority may stay the
operation of such order till the disposal of appeal subject to such conditions
including a condition of furnishing of a security in cash or otherwise as he
may deem fit:
PROVIDED FURTHER that-
(i) no application under this sub‑section
shall be entertained unless it is filed along with the memorandum of appeal
under sub‑section (1);
(ii) no
stay order under this sub‑section shall remain in force for more than
thirty days, unless the appellant, has, before the expiry of the said period,
furnished security to the satisfaction of the Assessing Authority for payment
of the amount, the realisation whereof has been
stayed;
(iii) no
stay order granted under the proviso to this sub‑section shall remain in
force after the expiry of the time allowed for fulfilling the condition, if
any, unless the appellant has fulfilled the conditions subject to which stay
order has been granted within the time allowed in the order of stay. If stay
order has been passed subject to condition of filing any security, the
appellant shall furnish security to the satisfaction of assessing authority
within the time allowed, failing which stay order shall not remain in force
after the expiry of the time allowed for fulfilling the conditions, if any.
Explanation: Rejection of a similar application for
stay by any authority for want of jurisdiction shall not by itself preclude the
Appellate Authority from entertaining such application.
(7) An
order passed under this section shall, subject to the provisions of this Act,
be final.
(8) If
the amount of tax assessed, fee levied or penalty imposed is reduced by the
Appellate Authority under sub‑section (5), he shall order the excess
amount of tax, fee or penalty if realized, to be refunded.
(9) Section
5 of the Limitation Act, 1963, shall apply to appeals or other applications
under this section:
PROVIDED that above provision shall not apply in
respect of appeals which are against such orders in respect of which
proceedings under section 58 have already been initiated before filing such
appeal. For this purpose if notice under section 58 has been issued by the
competent authority on a date prior to the date of presentation of appeal, it
shall be presumed that proceedings have been initiated under that section.
(10) The
appellate authority shall be under the superintendence and control of the
Commissioner:
PROVIDED that in the exercise of such superintendence
and control, no order, instructions or directions shall be given by the
Commissioner so as to interfere with the discretion of the Appellate Authority
in the exercise of its appellate functions.
(11) For
the purpose of this section service of an order passed by assessing authority
and service of memo of appeal on the State Representative, shall be deemed to
be service on the Commissioner.
(12) All
appeals arising out of the same cause of action in respect of an assessment
year shall be heard and decided together.
60. Revision
by the Commissioner
(1) The
Commissioner or such other officer not below the rank of Joint Commissioner as
may be authorised in this behalf by the Commissioner
by notification may call for and examine the record relating to any order
(other than an order mentioned in section 54) passed by any officer subordinate
to him, for the purpose of satisfying himself as to the legality or propriety
of such order and may pass such order with respect thereto as he thinks fit.
(2) No
order under sub‑section (1) affecting the interest of a party adversely
shall be passed unless he has been given a reasonable opportunity of being
heard.
(3) No
order under sub‑section (1), shall be passed-
(a) to
revise an order, which is or has been the subject matter of an appeal under section 59, or an order passed by the
Appellate Authority under that section;
(b) before
the expiration of sixty days from the date of the order in question;
(c) after
the expiration of four years from the date of the order in question.
Explanation: Where the appeal against any order is
withdrawn or is dismissed for non‑payment of fee payable under section 75
or for non‑compliance of sub‑section (1) of section 59 the order
shall not be deemed to have been the subject‑matter of an appeal under
section 59.
(4) Any
dealer or other person aggrieved by an order made by assessing authority under
any provision of this Act shall not be entitled to file a petition or any other
application or appeal under this section.
(1) There
shall be a Tribunal consisting of such members including a President as the
State Government may, from time to time, deem it necessary to appoint from
amongst-
(a) the
persons who are qualified to be the judge of the High Court, and
(b) the
persons belonging to the Uttar Pradesh Trade Tax Services who hold or have held
a post not below the rank of Joint Commissioner:
PROVIDED that-
(i) Where the Tribunal consists of one or
more persons who is or are member or members of the U.P. Higher Judicial
Service, then he or senior‑most amongst them shall be appointed as the
President.
(ii) No
person shall be appointed from amongst the advocate unless-
(a) he
has paid Income tax from his profession (exclusive of all other Income) in each
of five consecutive years preceding such appointment;
(b) he
has attained the age of 50 years on the first day of the appointment year;
The appointment year shall have the same meanings as
assigned to it under the U.P. Trade Tax Service Rules.
(c) members
under this clause shall be appointed for three years from the date of
appointment or till he attains the age of superannuation as prescribed under
U.P. Fundamental rules, whichever is earlier.
(2) The
State Government may prescribe such other qualifications or conditions for the
appointment of the President and the other members of the Tribunal as it may
deem fit.
(3) The
provisions of rule 56 of the U.P. Fundamental Rules shall continue to apply to
every member of the Tribunal including the President whether appointed before
or after the commencement of this Act, as they apply to any other Government
servant:
PROVIDED that a member of the Tribunal including the
President appointed before the commencement of the U.P. Trade Tax (Second
Amendment) and Validation Act, 1983, may continue as such till he attains the
age of sixty years.
(4) Any
person aggrieved by an order passed under section 35, section 59, section 60, a
decision under section 64, a direction under the proviso to sub‑section
(7) of section 48 may, within ninety days from the date of service of the copy
of such order, decision or direction on him, prefer an appeal to the Tribunal:
PROVIDED that where order passed by Appellate
Authority under section 59 or by revising authority under section 60 of the
Act, is an order in respect of demand of any security, not being security
demanded for release of goods seized under any provisions of this Act, appeal
under this section can be filed only after furnishing security, fixed by the
appellate authority under section 59 or as the case may be, by revising
authority under this section:
PROVIDED FURTHER that where the disputed amount of
tax, fee or penalty does not exceed two thousand rupees and no question of law
is involved, the appellant may, at his option, request the Tribunal in writing
for summary disposal of his appeal, whereupon the Tribunal may decide the
appeal accordingly.
Explanation: For the purposes of this sub‑section,
the expression 'any person' in relation to any order passed by an authority
other than the Commissioner includes the Commissioner and, in relation to any
order passed by the Commissioner includes the State Government.
(5) The
manner and procedure of summary disposal of appeal shall be such as may be
prescribed.
(6) Section
5 of the Limitation Act,1963 shall apply to appeals or other applications under
this section.
(7) The
Tribunal may at any stage, after giving the appellant a reasonable opportunity
of being heard, dismiss the appeal.
(8) The
Tribunal may, if it has not already dismissed the appeal under sub‑section
(6), after calling for and examining the relevant records, and after giving the
parties a reasonable opportunity of being heard or, as the case may be, after
following the procedure prescribed under sub‑section (4)-
(a) confirm,
cancel or vary such order, or
(b) set
aside the order and direct the assessing or appellate or revising authority or
the Commissioner as the case may be, to pass a fresh order after such further
enquiry, if any, as maybe specified, or order such amount of tax, fee or
penalty or other money as may have been realized in excess of the due amount to
be refunded according to the provisions of this Act.
(9) Where
an appeal under this section has been filed, the Tribunal may, on the
application of the appellant moved along with the memorandum of such appeal
after giving the parties a reasonable opportunity of being heard, stay the
operation of the order appealed against or the recovery of the disputed amount
of any tax, fee or penalty payable, or refund of the amount due, or proceeding
for reassessment under the order appealed against fill the disposal of the
appeal:
PROVIDED that-
(i) where appellate authority under section
59 has set aside an order of assessment or penalty and has remanded the case to
the assessing authority, for decision afresh, and the appellant under this
section is a person other than the Commissioner or the State Government, for
the purpose of this section, disputed amount of tax, penalty or composition
money shall be deemed to be the same which had been before appellate authority
under section 59; and
(ii) subject
to provision under sub‑clause (i) above where
order appealed against does not involve any dispute about quantum of tax, fee
or penalty, on the application of the appellant the Tribunal may stay the
operation of such order till the disposal of appeal subject to such conditions
including a condition of furnishing of a security whether in cash or otherwise
within the time allowed as it may deem fit. No stay order granted under this
clause shall remain in force after the expiry of the time allowed for
fulfilling the conditions, if any, unless the appellant has fulfilled such
condition within the time allowed. If stay order has been granted subject to
condition of furnishing any security, the appellant shall furnish security to
the satisfaction of assessing authority, failing which stay order shall stand
vacated after the expiry of the time allowed for fulfilling the conditions if
any:
PROVIDED FURTHER that-
(a) no
application for stay of recovery of any disputed amount of tax, fee or penalty
shall be entertained unless the applicant has furnished satisfactory proof of
the payment of not less than one‑third of such disputed amount in
addition to the amount required to be deposited under sub‑section (3) of
section 59;
(b) the
Tribunal may, for special and adequate reasons to be recorded in writing, waive
or relax the requirement of clause (i) regarding
payment of the one‑third of such disputed amount.
(10) Where
the Tribunal passes an order under this section for the stay of recovery of any
tax, fee or penalty or for the stay of the operation of any order appealed
against and such order of the Tribunal results in the stay of recovery of any
tax, fee or penalty, such stay order of the Tribunal shall not remain in force
for more than thirty days unless the appellant furnished adequate security to
the satisfaction of the assessing authority concerned for the payment of the
outstanding amount.
(11) The
members of the Tribunal shall sit in such benches of one, two or more members,
as may be constituted from time to time, and do such work of the Tribunal as
may, subject to sub‑section (10) and the rules, be allotted to them, by
order or in accordance with the directions of the President of Tribunal.
(12)
(a) An appeal against the
order of appellate authority under section 59 shall be heard and disposed of-
(i) by a bench of two members, where such
order, not being an order passed on the application of the appellant for stay,
is passed by an Additional Commissioner (Appeals) or the amount of tax, fee or
penalty in dispute, exceeds fifty thousand rupees;
(ii) by
a single member bench, in any other case.
(b) An
appeal against an order passed under section 58 or against a direction given
under the proviso to sub‑section (7) of section 48 shall be heard and
disposed of by a bench of two members.
(c) An
appeal against a decision given under section 64, shall be filed before the
President and shall be heard and disposed of by a bench of three members.
(d) The
President may, if he so thinks fit,-
(i) direct an appeal to be heard and decided by a larger bench;
(ii) transfer an appeal from one bench to
another bench.
(e) In
a case before a bench consisting of two or more members any order other than an
order finally disposing of the case may be passed by any one of the members
constituting the bench:
PROVIDED that an appeal against an order passed on an
application for stay, one member bench may finally dispose of such appeal.
(13) All
appeals arising out of the same cause of action in respect of an assessment
year shall be heard and decided together:
PROVIDED that where any one or more of such appeals
have been heard and decided earlier, if the bench hearing the remaining appeals
considers that such decision may be a legal impediment in giving relief in such
remaining appeals, it may, if the earlier decision was given-
(a) by
a smaller bench or a bench of equal strength, recall such earlier decision and
proceed to decide all the appeals together;
(b) by
a larger bench, refer such remaining appeals to such larger bench having
jurisdiction and thereafter such larger bench may recall such earlier decision
and proceed to decide all the appeals together.
(14) The
place of sitting and procedure of, and the manner of presenting appeals and
other documents to the Tribunal shall, subject to the rules, be such as the
Tribunal may deem fit to adopt.
(15) The
decision of case heard by a bench, shall be in accordance with opinion of the
majority. Where the members are equally divided the President of the Tribunal
may,-
(a) if
he was not a member of such bench, give his own opinion or refer the case for
the opinion of another member, whereupon the case shall be decided in
accordance with such opinions; or
(b)
form a larger bench.
The Tribunal may, on the application either by
appellant or by the respondent may within one hundred and fifty days from the
date of order passed by it under sub‑section (6) or (7) of section 61
review any order passed by it on the basis of facts which were not before it
when the order was passed:
PROVIDED that no order passed by it under sub‑section
(6) or sub‑section (7) of section 61 shall be reviewed if revision filed
under section 61 against such order has been decided by the High Court.
63. Revision
by High Court in special cases
(1) Any
person aggrieved by an order made under sub‑section (6) or sub‑section
(7) of section 61 other than an order under sub‑section (3) of that
section summarily disposing of the appeal or by an order passed under section
62 by the Tribunal may, within ninety days from the date of service of such
order, apply to the High Court for revision of such order on the ground that
the case involves any question of law.
(2) The
application for revision under sub‑section (1) shall precisely state the
question of law involved in the case, and it shall be competent for the High
Court to formulate the question of law or to allow any other question of law to
be raised.
(3) Where
an application under this section is pending, the High Court may, on an
application in this behalf, stay recovery of any disputed amount of tax, fee or
penalty payable, or refund of any amount due under the order sought to be
revised:
PROVIDED that no order for stay or recovery of such
disputed amount shall remain in force for more than thirty days unless the
applicant furnishes adequate security to the satisfaction of the Assessing
Authority concerned.
(4) The
High Court shall, after hearing the parties to revision, decide the question of
law involved therein, and where as a result of such decision, the amount of
tax, fee or penalty is required to be determined afresh, the High Court may
send a copy of the decision to the Tribunal for fresh determination of the
amount, and the Tribunal shall thereupon pass such orders as are necessary to
dispose of the case in conformity with the said decision.
(5) All
applications for revision of orders passed under section 61 in appeals arising
out of the same cause of action in respect of an assessment year shall be heard
and decided together:
PROVIDED that where any one or more of such
applications have been heard and decided earlier, if the High Court, while
hearing the remaining applications, considers that the earlier decision may be
a legal impediment in giving relief in such remaining applications, it may
recall such earlier decision and may thereafter proceed to hear and decide all
the applications together.
(6) The
provisions of section 5 of the Limitation Act, 1963, shall mutatis mutandis,
apply to every application, for revision under this section.
Explanation: For the purpose of this section, the
expression "any person" includes the Commissioner and the State
Government.
64. Determination
of disputed questions
(1) If
any question arises, otherwise than in a proceedings pending before a Court or
before an authority under the Act, whether, for the purposes of this Act-
(a) any
person or association of persons, society, club, firm, company, corporation,
undertaking or Government Department is a dealer, or
(b) any
particular thing done to any goods amounts to or results in the manufacture of
goods within the meaning of that term; or
(c) any
transaction is a sale or purchase and, if so, the sale or purchase price, as
the case may be, therefore; or
(d) any
particular dealer is required to obtain registration; or
(e) any
tax is payable in respect of any particular sale or purchase and, if so, the
rate thereof, the person or the dealer concerned may, after depositing the fee
specified in section 74, submit an application to the Commissioner, along with
such documents as may be prescribed.
(2) The
Commissioner shall, after giving the applicant an opportunity of being heard,
decide as he deems fit the question so arising:
PROVIDED that, before giving such decision, the
Commissioner may, in his discretion, ask an officer subordinate to him to make
such inquiries as he considers necessary for the decision of the question.
(3) No
decision of the Commissioner under this section shall affect the validity or
operation of any order passed earlier by any assessing authority, appellate authority,
revising authority or the Tribunal.
(4) No
question which arises from an order already passed, in the case of applicant,
by any authority under this Act or the Tribunal, shall be entertained for
determination under this section.
(5) Except
as provided in sub‑section (3), a decision given by the Commissioner
under this Section shall, subject to the provisions of sections 61 and 63 be
final and binding on the applicant, the Assessing Authority and the Appellate
Authority.
(6) A
copy of the decision given under this section shall be sent to the applicant
and to the assessing authority concerned.
65. Orders
against which no appeal or revision shall lie
No appeal and no application for revision shall
lie against-
(a) an
order or notice under section 24 or section 27 initiating an inquiry for
assessment or re‑assessment;
(b) any
order or action under section 45 or under sub‑section (1) or sub‑section
(2) or sub‑section (7) of section 48 or under sub‑section (6) of
section 50 or order of seizure of goods.
66. Additional
evidence in appeal
The assessee shall not be
entitled to produce additional evidence, whether oral or documentary, before
the appellate authority or the Tribunal except where the evidence sought to be
adduced is evidence, which the assessing authority had wrongly refused to admit
or which after exercise of due diligence was not within his knowledge or could
not be produced by him before the assessing authority, and in every such case,
upon the additional evidence being taken on record, reasonable opportunity for
challenge or rebuttal shall be given to the Assessing Authority.
(1) There
shall be a Settlement Commission consisting of such members including a
Chairman as the State Government may, from time to time, deem it necessary to
appoint from amongst-
(a) persons
who are eligible to be appointed as Secretary to the State Government; and
(b) persons
belonging to the Uttar Pradesh Commercial Tax Service who hold or have held a
post not below the rank of Member Tribunal under the Value Added Sales Tax Act:
PROVIDED that where members of Indian Administrative
Service are appointed as the members of the Commission, senior‑most among
them shall be the Chairman of the Commission:
PROVIDED FURTHER that where no member has been
appointed as member of the Commission from amongst the members of the Indian
Administrative Service or if the post of Chairman is vacant, the Secretary and
in the absence of Secretary, the Principal Secretary of the Tax and
Registration Department of the State Government shall officiate as the Chairman
of the Commission,
(2) The
headquarters of the Commission shall be at Luck now but the Commission for
discharge of its functions, may at its option hold its camp office anywhere in
the State at the headquarters of a Commercial Tax circle:
PROVIDED that where the Commission holds its office at
a place different from its headquarters, it shall intimate the concerned
persons by giving them at least fifteen days' advance notice.
(3) Any
dealer or other person-
(i) who has been served with a notice under
sub‑section (II) of section 45 and who is suspected to have evaded
payment of tax exceeding one lakh rupees or such
larger amount of tax as the State Government may by notification in the Gazette
specify; or
(ii) who
has been served with a notice for imposition of penalty either under sub‑section
(4) of section 48 or under clause (c) of sub‑section (1) of section 56
and where the maximum amount of penalty that can be imposed exceeds one lakh rupees, may apply to the Commission for composition of
amount of tax that may be assessed or amount of penalty that may be imposed,
within thirty days from the date of receipt of such notice after giving
intimation to the authority who has issued such notice:
PROVIDED that the Commission may, in appropriate
cases, permit a dealer or other person to present an application beyond the
period of thirty days but not exceeding ninety days subject to the condition
the assessing authority has not passed order of assessment or penalty, as the
case may be, in pursuance of such notice.
(4) The
application shall be addressed to the Chairman, Settlement Commission at Luck
now and shall be presented in the prescribed manner and in the prescribed form
along with such other documents as may be prescribed. The application shall
also accompany the satisfactory proof of deposit of rupees two thousand five
hundred as fee. The application for composition of tax or penalty shall
accompany an application for granting stay against proceedings in the matter
before the assessing authority.
(5) The
application received by the Commission shall be marked by the Chairman to one
of the members of the Commission. If such member to whom application has been
marked by the Chairman, finds that application is in order, he shall order to
register case for settlement. At the same time the member shall issue stay
orders on the application for stay. If the application is not in order, the
member shall issue notice to the applicant stating reasons to show cause why
application should not be rejected. If the applicant removes the defects
pointed out by the Commission, the member shall order for registration of the
case, but where the applicant does not turn up or does not remove the defects
pointed out by the Commission, the member shall reject the application.
(6) In
a case in which case for settlement has been registered, the member shall order
to call for the report in the matter, from the authority who has issued the
notice in respect of which settlement case has been registered. Such officer
shall submit its report within thirty days of receipt of the direction from the
Commission. Where the Commission is satisfied that the officer could not submit
the report within the stipulated time, it may on application from such
authority may extend the time for submitting its report.
(7) In
a case in which report referred to in sub‑section (6) has been received
by the Commission, the Chairman shall constitute a bench of two members of the
Commission to hear the case and to give its recommendation. The bench
constituted for hearing the case shall issue notices for hearing of the case to
the applicant and the Commissioner, Value Added Tax. The bench shall hear both
the parties and shall examine the relevant records. For this purpose, it may
call for any records from the applicant and the Commissioner relating to the
case or such other records which may be helpful in the case.
(8) After
giving reasonable opportunity of being heard to both the parties and after
examination of records, the bench shall prepare a proposal of the tax amount or
the penalty amount, which in its opinion would be sufficient to be accepted as
compounded amount of tax or penalty. Where the settlement case relates to the
evasion of tax amount, proposal in respect of amount of penalty under clause
(c) of sub‑section (1) of section 56 shall also be prepared. The proposal
prepared by the bench shall be submitted to the Chairman of the Commission for
its approval. Where the Chairman of the Commission gives his assent on the
proposal, the applicant shall be served with the proposal for giving his
consent within a period of fifteen days from the date of receipt of the
proposal. Where the Chairman does not agree with the proposed amount of tax
and, or penalty, or if the members of the bench have expressed different
opinions, the Chairman will discuss in the matter with the members of the bench
and shall reach a decision. Such decision shall be the decision according to
the majority opinions expressed by the Chairman and the members of the bench
who have heard the case.
(9) The
applicant within fifteen days from the receipt of the proposal from the
Commission shall submit his willingness to pay the proposed amount of tax and,
or penalty and if the applicant is not willing to pay the proposed amount, he
shall intimate to the Commission, along with reasons why he does not consider
it a reasonable proposal. He shall also inform the Commission about the amount
of tax and, or penalty which he agrees to pay.
(10) If
the Commission receives consent of the applicant for payment of the proposed
amount, the Chairman of the Commission shall pass an order in the matter and
shall direct the applicant to deposit the proposed and agreed amount of tax
and, or penalty within thirty days from the date of receipt of the order.
Copies of such order shall be sent to the officer who has issued the notice to
the applicant, to the assessing authority of the applicant and the Commissioner,
Commercial Tax. The copy of such order to the applicant shall be sent through
its assessing authority. Where the order passed by the Commission relates to
amount of tax, copy of such order shall be served on the applicant by the
assessing authority along with demand notice for the amount which is to be paid
by the applicant.
(11) Where
the applicant has not agreed with the proposal served by the Commission and has
quoted its own proposal, the Commission in the joint sitting of the Chairman
and the members who have heard the case, shall reconsider the case. If the
amount proposed by the applicant seems to be reasonable in view of the new
facts brought to the notice of the Commission or on the grounds set forth in
his proposal by the applicant, it may accept the proposal and may pass the
order accordingly.
(12) If
the applicant has not responded to the proposal offered by the Commission
within the time prescribed or within such further time, as may be allowed by
the Commission, the Commission shall dismiss the case stating reasons
therefore. Copies of such order shall be sent to all persons referred to in sub‑section
(10).
(13) Where
the applicant has accepted the proposal and has received the settlement order,
he shall deposit the amount mentioned in the order within thirty days from the
date of receipt of such order from the assessing authority:
PROVIDED that the Commission may, on the application
from the applicant, in appropriate cases, grant facility of payment of the
amount mentioned in the settlement order along with amount of interest payable,
in monthly installments not exceeding twenty four.
(14) If
the applicant does not deposit the amount mentioned in the settlement order or
any part of it, the same shall become recoverable as arrears of land revenue
after thirty days from the date of service of the order on him. The assessing
authority shall recover such amount as if such amount is amount of tax assessed
or penalty imposed under any other provisions of the Act. Provisions relating
to payment of interest in respect of amount of tax shall apply to the amount
mentioned in the settlement order in the manner the same are applicable in the
case of tax levied under any other provisions of the Act.
(15) For
all purposes under the Act, amount determined under this section shall be
treated to be tax levied or amount of penalty imposed, as the case may be, and
date of order made by the Commission shall be treated to be the date of order
of assessment or penalty as the case may be.
(16) Where
application of the dealer or other person has been rejected by the Commission,
the assessing authority shall proceed to assess the tax or to impose the
penalty in case of such dealer or other person in accordance with the other
relevant provisions under the Act.
(17) Notwithstanding
anything contrary to in section 27 of the Act, where in any case of assessment
an application under this section has been rejected by the Commission, the
assessment or re‑assessment, as the case may be, may be made by the
assessing authority before the expiry of the assessment year subsequent to the
assessment year in which order passed by the Commission has been received by
the assessing authority through official channel or before expiry of the period
prescribed under sub‑section (3) or sub‑section (4) or sub‑section
(7) of section 27 as may be applicable, whichever expires later.
(18) No
appeal, revision or review shall lie against any proceedings or any order made
under this section.
(19) The
Chairman and the members of the Commission shall be under the direct
administrative control of the State Government.
(20) Where
any member of the Commission is not available for a period extending beyond
fifteen days at a stretch, to discharge the duties in place of such member, the
State Government may, by notification in the Gazette, appoint and direct any
member of Commercial Tax Tribunal from amongst the members of the U.P.
Commercial Tax Service to work as member of the Commission. Any such officer
appointed under this sub‑section shall hold the office of the Commission
till the member in whose place such officer was appointed resumes his office or
till he is transferred from such post by the State Government or till the date
of his superannuation whichever is earlier.
(21) Service
conditions of the members of the Commission, appointed from amongst the members
of the Uttar Pradesh Commercial Tax Service shall be the same as those of the
Member, Tribunal Commercial Tax appointed from amongst the members of the Uttar
Pradesh Commercial Tax Service.
(22) Where
a case of settlement under this section is pending before the Commission,
nothing shall preclude the assessing authority from making an assessment or re‑assessment
pertaining to the assessment year to which settlement case is pending but the
assessing authority shall make its order by ignoring the material under the
show cause notice before the Commission.
(23) Where
any settlement case relating to evasion of tax is pending for consideration
before the Commission, if any additional notice in respect of tax evasion by
the same authority or any fresh notice by any other authority is issued on any
grounds not mentioned in the earlier notice, the applicant may request the
Commission to consider the material set out in such other notice provided the
Commission has not made the settlement order.
68. Objections
to jurisdiction
(1) No
objection as to the territorial or pecuniary jurisdiction of any assessing
authority shall be allowed by any appellate or revising authority or the
Tribunal, unless such objection was taken before the assessing authority at the
earliest possible opportunity and unless, in the opinion of the appellate or
revising authority or the Tribunal, as the case may be, a failure of justice
has in fact been occasioned thereby.
(2) Where
any assessment is set aside or quashed merely on the ground of want of
territorial or pecuniary jurisdiction of the assessing authority or on any
other ground of a like nature not affecting the substance, any tax already paid
by the assessee, to the extent of the liability
admitted by him shall not be refundable to him, in consequence of the
assessment being so set aside or quashed.
No suit, prosecution or other legal proceedings shall
lie against any servant of the Government for anything, which is in good faith
done or intended to be done under this Act or the Rules made thereunder.
70. Bar to
certain proceedings
No assessment made and no order passed under this Act
or the rules made thereunder by any authority shall
be called in question in any Court, and, save as is provided in this Act, no
appeal or application for revision or review shall lie against any such
assessment or order.
71. Certain
information to be confidential
(1) All
particulars contained in any statement made, return furnished or accounts or
documents produced under the provisions of the Act or of the rules made thereunder, or in any evidence given or affidavit or
deposition made in the course of any proceedings under the Act or the rules
made thereunder, or in any record of any proceedings
relating to the recovery of a demand prepared for the purpose of the Act or the
rules made thereunder, shall be treated as
confidential.
(2) Nothing
in sub‑section (1) shall apply to the disclosure of any such particulars-
(i) for the purpose of any investigation
of, or prosecution for any offence under this Act or under the Indian Penal
Code, 1860, or under any other enactment for the time being in force; or
(ii) to
any person acting in the execution of the Act or the rules made thereunder where it is necessary to disclose the same to
him for the purposes of the Act or the rules made thereunder;
or
(iii) occasioned
by the lawful employment under the Act or the rules made thereunder
of any process for the recovery of any demand; or
(iv) to
a Civil Court in any suit to which the Government are a party, which relates to
any matter arising out of any proceedings under the Act or the rules made thereunder; or
(v) occasioned
by the lawful exercise by a public servant of his powers under the Indian
Stamps Act, 1899, to impound an insufficient stamped document; or
(vi) to
an officer of Central Government or the Government of any State, for the
purpose of enabling that Government to levy or realise
any tax imposed by it; or
(vii) to
an officer of the Central or the State Government for the purposes of making
any inquiry against any Government servant; or
(viii)
for purposes of audit
of public accounts.
(1) The
State Government may make rules to carry out the purposes of this Act.
(2) In
particular and without prejudice to the generality of the foregoing powers,
such rules may provide for-
(a) all
matters expressly required or allowed by this Act to be prescribed;
(b) the
licensing of persons engaged in the sales or purchases of goods and the
imposing of condition in respect of the sale for the purpose of enforcing the
provisions of this Act;
(c) the
determination of the turnover for the purpose of assessment of tax under this
Act;
(d) compelling
the submission of returns and the production of documents and enforcing the
attendance of a person and examining them on oath or affirmation;
(e) the
appointment, duties and powers of the officers appointed for the purpose of
enforcing the provisions of this Act;
(f) generally
regulating the procedure to be followed and the forms to be adopted in
proceedings under this Act;
(g) refunds
of amounts deposited under sub‑section (1) of Section 42, the procedure
for such refunds and the period within which they may be made;
(h) the
custody of the goods seized under section 46; and
(i) the matters which are to be or may be
prescribed.
(3) The
power to make Rules conferred by this section shall be subject to condition of
the rules being made after previous publication for a period of not less than
four weeks:
PROVIDED that if the State Government is satisfied
that circumstances exist which render it necessary for it to take immediate
action, it may make any rule without such previous publication.
(4) All
rules made under this section shall be published in the Gazette and upon such
publication shall have effect immediately as if enacted in this Act.
73. Power
to issue notifications
Where the State Government is satisfied that it is
necessary so to do in the public interest, it may issue notification wherever
required under the provisions of this Act so as to make it effective from a
date not earlier than six months from the date of issuance of such
notification:
PROVIDED that no notification having the effect of
increasing the liability to tax of a dealer shall be issued with retrospective
effect under this section.
(1) Subject
to other provisions under the Act, the fee payable on a memorandum of appeal or
other applications under this Act filed or moved shall be as follows:-
(a) On a
memorandum of appeal under section 59:
Two percent of the amount of tax, fee or penalty in
dispute, subject to a minimum of one hundred rupees and a maximum of one
thousand rupees.
(b) On a
memorandum of appeal under section 61:
Seven and a half per cent of the amount of tax, fee or
penalty in dispute, subject to a minimum of five hundred rupees and maximum of
two thousand one hundred rupees.
(c) On an
application under section 64:
One Hundred rupees.
(d) On any
other application:
(i) When addressed to the Commissioner or
the Revising Authority or the Tribunal or the Settlement Commission‑Twenty
rupees
(ii) When
addressed to any other officer or authority‑Ten rupees.
(2) The
fee referred to in this section and in any other provisions of this Act shall
be payable in the manner prescribed, and proof of deposit of the same shall be
attached to the memorandum or application, as the case may be:
PROVIDED that where the amount of fee payable does not
exceed fifty rupees, the same may be paid in court fee stamps.
(3) No fee
shall be payable in respect of-
(a) an
application or a memorandum of appeal presented by the Commissioner or any
other officer or authority appointed under this Act or the rules made thereunder;
(b) an
application in which only information is sought and in which no specific relief
is prayed for; and
(c) an
application under section 64, seeking a decision only as to the rate of tax
applicable or the point at which the tax is payable.
75. Transfer
to defraud revenue void
(1) Where,
during the pendency of any proceedings under this
Act, any person liable to pay any tax or other dues creates a charge on, or
transfers any movable or immovable property belonging to him in favour of any other person with the intention of defrauding
any such tax or other dues, such charge or transfer shall be void as against
any claim in respect of any tax or other dues payable by such person as a
result of the completion of the said proceedings:
PROVIDED that nothing in this section shall impair the
rights of a transferee in good faith and for consideration.
(2) Nothing
in sub‑section (1) shall apply to a charge or transfer in favour of a banking company as defined in the Banking
Regulation Act, 1949 (Act X of 1949) or any other financial institution
specified by the State Government by notification in this behalf.
76. Facility
for sick industrial units
(1) Notwithstanding
anything contained in sub‑section (1) and sub‑section (2) of
section 33 and section 76, but subject to such conditions, as may be deemed fit
to be imposed, the State Government may allow the deferment of payment of any
existing or future dues payable by an industrial unit under the provisions of
this Act or allow payment of such dues in such number of installments as may be
specified, if such industrial unit is declared a sick unit in accordance with
the guidelines specified in this behalf by an authorised
body constituted by the Central Government or the State Government in
connection with the rehabilitation of sick industrial units, and is approved
for rehabilitation by an approved agency, appointed by the Central Government
or the State Government.
77. Power
to collect statistics
(1) If
the Commissioner considers that for the purpose of the better administration of
this Act, it is necessary so to do, it may, by issuing a circular and, or by
publication in the newspaper or by notification in the Gazette, direct that
statistics be collected relating to any matter dealt with by or under this Act.
(2) Upon
being direction made, any person authorised by it in
this behalf, call upon all dealers or class of dealers or a particular dealer
to furnish such information or returns or statements as may be stated therein
relating to any matter in respect of which statistics are to be collected.
(3) Dealer
or dealers shall be liable to furnish such information within the time allowed.
78. Tax to
be first charge on property
Notwithstanding anything to the contrary contained in
any law for the time being in force, any amount payable by a dealer under this
Act on account of tax, fee, penalty or interest or any amount which a person is
required to pay under this Act shall be a first charge on the property of the
dealer or such person.
79. Dealer
to declare the name of his business manager
(1) Every
dealer, who is liable to pay tax, and who is a Hindu Undivided Family or an
association of persons, club or society, firm or company, or who is engaged in
business as the guardian or trustee or otherwise on behalf of another person,
shall within the period prescribed, furnish a declaration in the manner
prescribed stating the name of the person or persons who shall be deemed to be
manager or managers of such dealer's business for the purposes of this Act.
(2) Such
declaration shall be furnished at the time of registration, wherever applicable
and shall be revised from time to time.
(1) Notwithstanding
anything contained in section or, if the Commissioner is of the opinion that it
is necessary or expedient in the public interest to publish or disclose the
names of any dealers or other persons and any particulars relating to any
proceedings under this Act in respect of such dealers and persons, it may
publish or disclose or cause to be published or disclosed such names and
particulars in such manner as it thinks fit.
(2) No
publication or disclosure under this section shall be made in relation to any
tax levied or penalty imposed or interest levied or any conviction for any
offence connected with any proceeding under this Act, until the time for
presenting an appeal to the appropriate appellate authority has expired without
an appeal having been presented or the appeal, if presented, has been disposed
of.
Explanation: In the case of a firm, company or other
association of persons, the names of the partners of the firm, the directors,
managing agents, secretaries, treasurers or managers of the company or the
members of the association, as the case may be, may also be published or
disclosed, if, in the opinion of the Commissioner, the circumstances of the
case justify it.
(1) Subject
to conditions, if any, as may be prescribed, the Commissioner or any other
officer not below the rank of an Additional Commissioner, authorized by the
Commissioner in this behalf, may authorize either generally or in respect of a
particular case or class of cases any officer or person subordinate to him to
investigate all or any of the offences punishable under this Act.
(2) Every
officer so authorized shall, in the conduct of such investigation, exercise the
power conferred by the Code of Criminal Procedure, 1973 upon an officer‑in‑charge
of a police station for the investigation of a cognizable offence.
(3) Officer
conducting investigation under sub‑section (1) may take assistance of
police personnels of local police station.
82. Appearance
before any authority in proceedings
(1) Any
person who is entitled or required to attend before any authority including the
Tribunal and the Settlement Commission in connection with any proceeding under
this Act, otherwise than when required to attend personally for examination on
oath or affirmation, may attend-
(a) by a
relative or a person regularly employed by him, or
(b) by
a legal practitioner, or 6artered Accountant who is not disqualified by or
under sub‑section (2), or
(c) by
a sales tax practitioner who possesses the prescribed qualifications and is
entered in the list which the Commissioner shall maintain in that behalf, and
who is not disqualified by or under sub‑section (2), only if such
relative, person employed, legal practitioner, Chartered Accountant, or sales
tax practitioner is authorized by such person in the prescribed form, and such
authorization may include the authority to act on behalf of such person in such
proceedings.
(2) In
a case of a sales tax practitioner the Commissioner and in case of a legal
practitioner or a Chartered Accountant the competent authority, may by order in
writing and for reasons to be recorded therein disqualify such sales tax
practitioner or legal practitioner or Chartered Accountant, as the case may be,
for such period as is stated in the order from attending before any such
authority, any legal practitioner, Chartered Accountant, or sales tax
practitioner-
(i) who has been removed or dismissed from
Government service; or
(ii) who
being a sales tax practitioner, is found guilty of misconduct in connection
with any proceedings under this Act by the Commissioner or being a legal
practitioner or a Chartred Accountant is found guilty
of misconduct in connection with any proceedings under this Act by the
authority, if any, empowered to take disciplinary action against the member of
the profession to which he belongs.
(3) No
order of disqualification shall be made in respect of any particular person
unless he is given a reasonable opportunity of being heard.
(4) Any
person against whom any order of disqualification is made by the Commissioner
under this section may within one month of the date of communication of such
order appeal to the Tribunal to have the order cancelled or modified. The order
of the Commissioner shall not take affect until one month of the making
thereof:
PROVIDED that the Tribunal may grant stay against
operation of the order till the decision of the appeal pending before it for
disposal subject to such conditions as it may deem fit.
(5) The Commissioner may, at any time suo motu or an application made
to him in this behalf, revoke or modify any order made against any
person under sub‑section (2) and thereupon such person shall cease to be
disqualified subject to such conditions or restrictions that may be contained
in such order.
83. Delegation
of the Commissioner's powers and functions
Except as expressly provided in any other provision
under this Act, subject to such restrictions and conditions as may be
prescribed, the Commissioner may, by order in writing, delegate any of his
powers and functions under this Act and the Rules made thereunder
to any officer not below the rank of a joint Commissioner.
84. Authorities
under the Act to be public servants
All authorities including Commissioner, President and
members of the Tribunal and Chairman and members of the Settlement Commission
shall be deemed to be public servants within the meaning of section 21 of
Indian Penal Code.
85. Powers
of Authorities under the Act
(1) Except
President and members of the Tribunal and Chairman and members of the
Settlement Commission shall be under the superintendence and administrative
Control of the Commissioner.
(2) The
Commissioner shall have jurisdiction over whole of the State and shall exercise
the powers conferred, and perform the duties imposed by or under the Act or
Rules made thereunder.
(3) The
Commissioner shall have all powers exercisable by subordinate authorities other
than the appellate authority under section 54.
(4) Consistent
with the provisions of the Act and Rules made thereunder,
the Commissioner may issue instructions to officers under his subordination,
generally regulating the procedure to be followed in carrying out the
provisions of the Act or Rules made thereunder:
PROVIDED that no order, instructions or directions
shall be given by the Commissioner so as to interfere with the discretion of
the appellate authority in the exercise of its appellate functions.
(5) Subject
to general control of the Commissioner-
(i) all Additional Commissioners shall also
exercise powers vested in the Commissioner;
(ii) all
joint Commissioners and all Deputy Commissioners shall exercise the powers
conferred including powers delegated to them by the Commissioner, and perform
the duties imposed by or under the Act or the Rules made thereunder,
as may be consistently with the Act or the Rules made thereunder,
be conferred and assigned to them; and
(iii) all
other officers except President and Members of the Tribunal and Chairman and
Members of the Settlement Commission,
shall exercise the powers and perform the duties as
may be assigned to them under Rules made under this Act.
(6) Authorities
under sections and shall exercise the powers and perform the duties in
accordance with provisions under sections and respectively or the Rules made thereunder.
(7) The
State Government, for the purpose of carrying out the provisions under the Act
or Rules made thereunder, may appoint and, or as the
case may be, post such other officers by name or designation as it may deem fit
and as may be prescribed.
(8) Authorities
under the Act shall exercise their powers in the jurisdiction as may be
prescribed or as may be notified by the State Government in exercise of the
powers vested in it under the Rules.
(1)
Authorities mentioned
in column (2) of the Table below appointed and posted by the State Government
to carry out the purposes of the Uttar Pradesh Trade Tax Act, 1948 shall be
deemed to have been appointed and posted by the State Government as authorities
mentioned in column (3) of the Table against each of them and shall continue in
office till such person holds such office and such officer shall exercise the
powers vested in and perform the duties cast under this Act, rules made and
notifications issued thereunder.
|
Sr. No. |
Designation
of the authority under the U.P. Trade Tax Act, 1948 |
Designation
of the authority under the U.P. Value Added Sales Tax Act, 2002. |
|
1 |
Commissioner Trade Tax |
Commissioner Commercial Tax |
|
2 |
Chairman Settlement Commission Trade Tax |
Chairman Settlement Commission Commercial Tax |
|
3 |
President Trade Tax Tribunal |
President Commercial Tax Tribunal |
|
4 |
Member Settlement Commission Trade Tax |
Member Settlement Commission Commercial Tax |
|
5 |
Member Tribunal Trade Tax |
Member Tribunal Commercial Tax |
|
6 |
Additional Commissioner Trade Tax |
Additional Commissioner Commercial Tax |
|
7 |
Additional Commissioner Trade Tax (Legal) |
Additional Commissioner Commercial Tax(Legal) |
|
8 |
Additional Commissioner Trade Tax
(Administration) |
Additional Commissioner Commercial Tax
(Administration) |
|
9 |
Additional Commissioner Trade Tax Grade I |
Additional Commissioner Commercial Tax Grade
I |
|
10 |
Additional Commissioner Trade Tax Grade II |
Additional Commissioner Commercial Tax Grade
II |
|
11 |
joint Commissioner Trade Tax |
joint Commissioner Commercial Tax |
|
12 |
joint Director Trade Tax Officers Training
Institute |
Joint Director Commercial Tax Officers
Training Institute |
|
13 |
Deputy Commissioner Trade Tax |
Deputy Commissioner Commercial Tax |
|
14 |
Deputy Commissioner Trade Tax (Special
Investigation Branch) |
Deputy Commissioner Commercial
Tax(Enforcement) |
|
15 |
Deputy Commissioner Trade Tax (Appeals) |
Deputy Commissioner Commercial Tax(Appeals) |
|
16 |
Deputy Commissioner Trade Tax (Check Posts) |
Deputy Commissioner Commercial Tax(Check
Posts) |
|
17 |
Deputy Commissioner Trade Tax (Supreme Court
Works) |
Deputy Commissioner Commercial Tax(Supreme
Court Works) |
|
18 |
Deputy Commissioner Trade Tax (High Court
Works) |
Deputy Commissioner Commercial Tax(High Court
Works) |
|
19 |
Assistant Commissioner Trade Tax |
Assistant Commissioner Commercial Tax |
|
20 |
Assistant Commissioner Trade Tax
(Enforcement) |
Assistant Commissioner Commercial Tax
(Enforcement) |
|
21 |
Assistant Commissioner Trade Tax (Special
Investigation Branch) |
Assistant Commissioner Commercial Tax
(Special Investigation Branch) |
|
22 |
Assistant Commissioner Trade Tax and State
Representative |
Assistant Commissioner Commercial Tax and
State Representative |
|
23 |
Assistant Commissioner Trade Tax
(Check-Posts) |
Assistant Commissioner Commercial Tax
(Check-Posts) |
|
24 |
Assistant Commissioner Trade Tax
(Administration) |
Assistant Commissioner Commercial Tax
(Administration) |
|
25 |
Assistant Commissioner Trade Tax (Recovery) |
Assistant Commissioner Commercial Tax
(Recovery) |
|
26 |
Assistant Commissioner Trade Tax (Assessment) |
Assistant Commissioner Commercial Tax
(Assessment) |
|
27 |
Assistant Commissioner Trade Tax supreme
Court Works) |
Assistant Commissioner Commercial Tax
(Supreme Court Works) |
|
28 |
Assistant Commissioner Trade Tax (High Court
Works) |
Assistant Commissioner Commercial Tax (High
Court Works) |
(1)
Officers mentioned in
column (2) of the Table below appointed and posted by the State Government or
appointed by the State Government and posted by the Commissioner Trade Tax, to
carry out the purposes of the Uttar Pradesh Trade Tax Act, 1948 shall be deemed
to have been appointed and posted by the State Government or appointed by the
State Government and posted by the Commissioner Commercial Tax, as the case may
be, as officers mentioned in column (3) of the Table against each of them and
shall continue in office till such person holds such office and such officer
shall exercise the powers vested in and perform the duties cast under this Act,
rules made and notifications issued thereunder,
|
Sr. No. |
Designation
of the authority tinder the U. P. Trade Tax Act, 1948 |
Designation
of the authority under the U.P. Value Added Sales Tax Act, 2002 |
|
1 |
Trade Tax Officer |
Commercial Tax Officer |
|
2 |
Trade Tax Officer (A) |
Commercial Tax Officer (Administration)- |
|
3 |
Trade Tax Officer (Special Investigation
Branch) |
Commercial Tax Officer (Special Investigation
Branch)- |
|
4 |
Trade Tax Officer (Mobile Squad) |
Commercial Tax Officer (Mobile Squad) |
|
5 |
Trade Tax Officer and State Representative |
Commercial Tax Officer and State
Representative _1 |
|
6 |
Trade Tax Officer (Check-post) |
Commercial Tax Officer (Check- Post) |
|
7 |
Trade Tax Officer in other any capacity |
commercial Tax Officer posted in the same
capacity |
(3) Officers
mentioned in column (2) of the Table below appointed and posted by Commissioner
Trade Tax, to carry out the purposes of the Uttar Pradesh Trade Tax Act, 1948
shall be deemed to have been appointed and posted by the Commissioner
Commercial Tax, as officers mentioned in column (3) of the Table against each
of them and shall continue in office till such person holds such office and such
officer shall exercise the powers vested in and perform the duties cast under
this Act, rules made and notifications issued thereunder.
|
Sr. No. |
Designation of the authority tinder the U.P. Trade Tax Act, 1948 |
Designation of the authority under the UP, Value Added Sales Tax Act,
2002 |
|
1 |
Trade Tax Officer Grade II |
Commercial Tax Officer Grade II |
|
2 |
Trade Tax Officer Grade II (Special Investigation Branch) |
Commercial Tax Officer Grade II(Special Investigation Branch) |
|
3 |
Trade Tax Officer Grade II (Mobile Squad) |
Commercial Tax Officer Grade II(Mobile Squad) |
|
4 |
Trade Tax Officer Grade II (Check-Post) |
Commercial Tax Officer Grade II (Check-Post) |
|
5 |
Trade Tax Officer Grade II (posted in any other capacity) |
Commercial Tax Officer Grade II (posted in same capacity) |
(4) Notwithstanding
anything contained contrary in sub‑section (1) or sub‑section (2)
or sub‑section (3) authorities or officers appointed and, or posted by
the State Government or the Commissioner Trade Tax to carry out the purposes
under the U.P. Trade Tax Act, 1948, rules made or notifications issued thereunder shall continue to be so appointed and or posted
till they hold office and any officer appointed or posted as officer of the
Commercial Tax Department mentioned in column (3) of any Table under sub‑section
(1) or sub‑section (2) or sub‑section (3) shall also be deemed an
officer of the Trade Tax shown in column (2) of the relevant Table against each
of them and shall be competent to discharge duties cast on him under the U.P.
Trade Tax Act, 1948 or the rules made or notifications issued thereunder.
(4) Territorial
limits of a Bench of a Member Commercial Tax Tribunal or of a Zone of an
Additional Commissioner Commercial Tax or a Region of a Deputy Commissioner
(Executive) Commercial Tax or Region of a Deputy Commissioner (Appeals)
Commercial Tax or Range of an Assistant Commissioner Commercial Tax, unless
amended by the State Government by Notification in the Gazette, shall include
such circles or a circle or part of such circle of Trade Tax as notified by the
State Government under the U.P. Trade Tax Rules, 1948 and as stood on the date
immediately preceding the date of commencement of this Act, in case of a Member
Trade Tax Tribunal of a Bench or an Additional Commissioner Trade Tax of a Zone
or a Deputy Commissioner (Executive) Trade Tax of a Region or a Deputy
Commissioner (Appeals) Trade Tax of a Region or an Assistant Commissioner Trade
Tax of a Range respectively and territorial limits of a Commercial Tax Circle
shall, unless otherwise notified or amended by the State Government, be the same as notified by the
State Government or fixed by the Commissioner Trade Tax.
(5) The
place of headquarter of a Bench of a Member Tribunal Commercial Tax or an
Additional Commissioner Commercial Tax or a Deputy Commissioner (Executive)
Commercial Tax or a Deputy Commissioner (Appeals) Commercial Tax or an
Assistant Commissioner Commercial Tax or a Commercial Tax Circle shall unless
changed by the State Government by Notification in the Gazette, be the same as
notified by the State Government in case of a Bench of a Member Trade Tax
Tribunal or an Additional Commissioner Trade Tax or a Deputy Commissioner
(Executive) Trade Tax or a Deputy Commissioner (Appeals) Trade Tax or an
Assistant Commissioner Trade Tax or a Trade Tax Circle respectively.
(1) With
effect from the date of commencement of this Act liability of payment of tax on
sale or purchase of any goods made on or after such date, under the provisions
of the U.P. Trade Tax Act, 1948, shall cease.
(2) Except
as provided in this Act, any exemption from payment of tax or any concession in
payment of tax or concession or reduction in rate of tax or any rebate or
refund in respect of any sale or purchase of any goods granted under any
provisions of the U.P. Trade Tax Act, 1948 or rules made or notifications
issued thereunder shall not be admissible in respect
of purchase or of sale of any goods on or after the date of commencement of
this Act.
(3)
(i) Any
case of assessment or reassessment pending on the date of commencement of this
Act and cases of assessment or reassessment those may arise as a result of any
proceedings under the U.P. Trade Tax Act, 1948; or
(ii) Any
case of penalty pending on the date of commencement of this Act and those cases
in which penalty proceedings may be initiated after such date under the
provisions of the U.P. Trade Tax Act, 1948; or
(iii) Any
appeal or revision or reference pending on the date of commencement of this Act
and all such appeals or revisions or references as may be filed after such date
under the provisions of the U.P. Trade Tax Act, 1948; or
(iv) Any
case of review pending on the date of commencement of this Act and all cases of
review which may be initiated on or after such date under the provisions of the
U.P. Trade Tax Act, 1948; or
(v) Any
cases of rectification of mistakes on record in any order pending on the date
of commencement of this Act and all other cases relating to rectification of
mistakes in any order whether made before or after such date those may come on
record on or after such date; or
(vi) Any
applications for grant of registration or for grant of recognition certificate
or for grant of eligibility certificate pending on the date of commencement of
this Act; or
(vii) Any
cases in which any officer or authority has been directed by any court or
authority in exercise of powers vested in it to make fresh order, whether
before or on or after the date of commencement of this Act; or
(viii) Any
case pending before the Commissioner under sub‑section (3) of section 4‑A
of the U.P. Trade Tax Act, 1948 or cases in which proceedings may be initiated
on or after the date of commencement of this Act including cases in which
Commissioner has been directed by any court or authority to make fresh order;
or
(ix) Any
case of seizure of books, accounts or documents or goods; or
(x) Any
application pending on the date of commencement of this Act and every such
application that may be presented on or after such date under the provisions of
the U.P. Trade Tax Act 1948; or
(xi) Any
other cases pending on the date of commencement of this Act or cases those may
come on record on or after such date, shall be disposed of in accordance with
the provisions under the U.P. Trade Tax Act, 1948, rules made or notifications
issued thereunder within the time prescribed in the
said Act.
(4) Any
amount of tax or penalty or fee assessed, imposed or payable whether before or
on or after the date of commencement of this Act under the provisions of the
U.P. Trade Tax Act, 1948, for the purpose of payment and recovery of amount due
on or after the date of commencement of this Act shall be paid or recovered in
accordance with the provisions of this Act. Amount of interest payable for the
period before the date of commencement of this Act shall be paid and recovered
according to provisions of the U.P. Trade Tax Act, 1948 and for the period
starting on or after such date shall be paid and be recovered in accordance
with provisions of this Act.
(5) Where
period of any return relates partly to the period before the date of
commencement of this Act, separate returns for period before such date and the
period under this Act shall be submitted separately.
(6) Where
any recovery proceedings in respect of realisation of
any amount due from a dealer or any other person under the U.P. Trade Tax Act,
1948, have been initiated before the date of commencement of this Act, on
commencement of this Act shall continue from the stage the same were pending.
(7) In
respect of defaults made before the date of commencement of this Act by a
dealer or any other person penalty proceedings or prosecution shall be made in
accordance with the provisions under the U.P. Trade Tax Act, 1948 and in
respect of defaults made on or after the date of commencement of this Act
penalty proceedings and prosecution be made in accordance with the provisions
under this Act. Where default is of continuing nature and continues on or after
such date penalty proceedings or prosecution shall be made in accordance with
provisions of this Act.
(8) Any
amount of tax or penalty or fee deposited by the dealer or any other person or
recovered from the dealer or any other person under the provisions of the U.P.
Trade Tax Act, 1948, if is found in excess of amount of tax or penalty or fee
payable shall first be adjusted towards any amount outstanding against such
dealer or other person either under the U.P. Trade Tax Act, 1948 or under this
Act or under the Central Sales Tax Act 1956, and remaining if any, shall be
refunded to such dealer or other person in accordance with provisions of this
Act. Interest if payable shall be paid in accordance with the provisions of
this Act.
(9) Any
dealer who was a registered dealer under the U.P. Trade Tax Act, 1948 but has
not remained liable to obtain registration in view of provisions under this Act
or and if the dealer does not desire to remain registered voluntarily, shall
surrender registration certificate granted to him within a period of one month
from the date of commencement of this Act along with all forms of declaration
or certificates remaining unused if any, with him.
(10) Any
form of declaration or certificate prescribed under rules made or notifications
issued under the provisions of the U.P. Trade Tax Act, 1948 as are in
conformity with provisions of this Act, shall be used by the dealers or other
persons who are entitled to use them under this Act unless the same are
declared invalid.
(11) Any
form of declaration or certificate prescribed under the provisions of the U.P.
Trade Tax Act, 1948, as are not in conformity with any provisions of this Act,
remaining unused with any dealer or any other person shall be returned to the
assessing authority from whom the same were received within a period of sixty
days from the date of commencement of this Act.
(12) Any
scheme of payment of lump sum in lieu of tax due under the provisions of
section 7‑D of the U.P. Trade Tax Act, 1948 for a period where part of
such period under scheme expires on or after the date of commencement of this
Act, shall not be deemed valid under this Act unless the State Government makes
an order to this effect.
(13) Any
security or additional security furnished under the provisions of the U.P.
Trade Tax Act, 1948 in respect of grant of registration certificate or
continuation of the registration certificate or for safe custody and proper use
of any form of declaration or certificate prescribed under the provisions of
the said Act shall not be deemed valid for the purposes under this Act unless
the dealer furnishes an undertaking from the sureties to this effect on paper
duty stamped within thirty days from the date of commencement of this Act:
PROVIDED the assessing authority may extend the time
for furnishing undertaking from sureties in appropriate cases.
(14) Nothing
contained in sub‑section (13) shall preclude the assessing authority from
demanding any additional security from a registered dealer under this Act.
(15) Dealers
Who have been granted moratorium for payment of tax in lieu of exemption from
tax under sub‑section (2‑A) of section 8 of the U.P. Trade Tax Act,
1948 or dealers who may be granted moratorium for payment of tax from the date
of first sale, shall continue to avail such facility under this Act subject to
conditions under section 35 of the Act.
(16) Any
officer authorised by the Commissioner Trade Tax to
exercise powers under section 10‑B of the U.P. Trade Tax Act, 1948 shall
be deemed an officer authorised by the Commissioner
Commercial Tax to exercise powers under section 61 of this Act and likewise an
officer authorised by the Commissioner Trade Tax to
exercise powers under proviso to sub‑section (6) of section 13‑A of
the U.P. Trade Tax Act, 1948 shall be deemed to be an officer authorised by the Commissioner Commercial Tax to exercise
powers under proviso to sub‑section (7) of section 48 of this Act.
(17) Any
orders made or directions issued either by the State government or by the
Commissioner Trade Tax for carrying out purposes of the U.P. Trade Tax Act,
1948, to the extent the same are not inconsistent with the provisions under
this Act unless the same are modified or amended or varied or withdrawn, shall
apply to all matters under this Act and shall be deemed to have been issued
under the provisions of this Act.